Mid Continent Nail Corp. v. United States

34 Ct. Int'l Trade 512, 712 F. Supp. 2d 1370, 2010 CIT 47

• Court: United States Court of International Trade
• Decided: May 4, 2010
• Docket: 08-00224
• Status: Published

Opinion

OPINION

RESTANI, Chief Judge:

This court action challenges the Department of Commerce’s (“Commerce”), final determination rendered in a targeted antidumping duty investigation of certain steel nails from the People’s Republic of China (“PRC”). See Certain Steel Nails from the People’s Republic of China: Final Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances, 73 Fed. Reg. 33,977 (Dep’t Commerce June 16, 2008) (“Final Determination”). The plaintiffs, Mid Continent Nail Corporation, Davis Wire Corporation, M.aze Nails and Treasure Coash Fasteners, Inc., collectively the domestic industry, submitted a motion for judgment on the agency record. For the reasons stated below, the court denies the plaintiffs’ motion and grants judgment on the agency record in favor of the United States.

Background

I. Targeted Dumping

Targeted dumping analysis is “an alternative method for determining the existence of margins of dumping in an investigation . . . .” Targeted Dumping in Antidumping Investigations; Request for Comment, 72 Fed. Reg. 60,651, 60,651 (Dep’t Commerce Oct. 25, 2007) (“Request for Comment”). The purpose of this methodology is to enable Commerce to identify dumping when a seller is providing lower prices to only certain United States purchasers “by comparing the weighted average of the normal values to the export prices (or constructed export prices) of individual transactions for comparable merchandise.” 19 U.S.C. § 1677f1(d)(1)(B); see Request for Comment. By contrast, during an ordinary antidumping investigation, Commerce -determines “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 weighted average of the export prices (and constructed export prices) for comparable merchandise” or by “comparing the normal values of individual transactions to the export prices (or constructed export prices) of individual transactions for comparable merchandise.” 19 U.S.C. § 1677f-1(d)(1)(A).

II. Commerce’s Investigation of Certain Steel Nails from the PRC

In May 2007, the plaintiffs filed petitions with Commerce concern-, ing certain steel nails from the PRC. Certain Steel Nails from the People’s Republic of China and the United Arab Emirates: Initiation of Antidumping Duty Investigations, 72 Fed. Reg. 38,816, 38,817 (Dep’t Commerce July 16, 2007). In July 2007, Commerce initiated a targeted dumping investigation of. certain steel nails from the PRC for the period of April 1, 2006, through March 31, 2007. Id. In September 2007, Commerce selected Illinois Tool Works Inc. and Paslode Fasteners (Shanghai) Co., Ltd. (“Paslode”) and Xingya Group (‘Xingya”) as the mandatory respondents in the investigation. Certain Steel Nails From the People’s Republic of China: Preliminary Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances and Postponement of Final Determination, 73 Fed. Reg. 3928, 3930 (Dep’t Commerce Jan. 23, 2008) (“Preliminary Determination”). In December 2007, the plaintiffs submitted an allegation of targeted dumping against Paslode and Xingya. Id. at 3931.

In its Preliminary Determination, published on January 23, 2008, Commerce used the methodology it had accepted in a previous investigation to conclude that targeted dumping had occurred. 1 Id. at 3939-40. The following month, Commerce amended its Preliminary Determination to correct significant ministerial errors with respect to the calculation of Paslode’s antidumping duty (AD) margin. See Certain Steel Nails From the People’s Republic of China: Amended Preliminary Determination of Sales at Less Than Fair Value, 73 Fed. Reg. 7254 (Dep’t Commerce Feb. 7, 2008) (“Amended Preliminary Determination”). In the Amended Preliminary Determination, Commerce calculated an AD margin of 4.70 percent for Paslode whereas Xingya’s AD margin remained unchanged at 44.57 percent. Id. at 7255. At that time, however, Commerce stated that it intended to develop a new methodology to assess Paslode and Xingya’s alleged targeted dumping and requested comments on the matter. Preliminary Determination, 73 Fed. Reg. at 3939.

On April 21, 2008, Commerce informed the plaintiffs of its new methodology (“the nails test”) and set a sixteen day deadline for comments. 2 (Pis.’ Documentary App. Accompanying Mem. of Law in Supp. of Pis.’ Rule 56.2 Mot. for J. Upon the Agency R. (“Pis.’App.”) Tab 6-8.) The nails test consists of two stages. Proposed Methodology for Identifying and Analyzing Targeted Dumping in Antidumping Investigations; Request for Comment, 73 Fed. Reg. 26,371, 26,372 (Dep’t Commerce May 9, 2008) (“Proposed Methodology”). The first stage, the “standard deviation test,” requires Commerce to calculate a standard deviation for all of the sale prices of an item from a particular exporter. Id. Commerce then must add together the volume for all of the items sold at a price below one standard deviation from the weighted-average price. Issues and Decision Memorandum at 20. If this combined volume exceeds thirty-three percent of the total volume of sales of that item from the particular exporter, the first stage of the test is satisfied. Id. The second stage of the test, the gap test, is satisfied if the volume of sales that qualify under a price gap comparison 3 exceeds five percent “of the total [volume] of sales of subject merchandise to the allegedly targeted customer.” Proposed Methodology, 73 Fed. Reg. at 26,372, amended by Issues and Decision Memorandum at 21 n.15.

The plaintiffs filed their case brief in response to the nails test on May 7, 2008. (See Pis.’ App. Tab 9.) On May 9, 2008, Commerce published the nails test and provided the public thirty days to comment. Proposed Methodology, 73 Fed. Reg. at 26,372. Commerce subsequently extended this deadline until June 23, 2008. Antidumping Methodologies for Proceedings that Involve Significant Cost Changes Throughout the Period of Investigation (POI) /Period of Review (POR) that May Require Using Shorter Cost Averaging Periods; Request for Comment and Proposed Methodology for Identifying and Analyzing Targeted Dumping in Antidumping Investigations; Request for Comment, 73 Fed. Reg. 32,557, 32,557 (Dep’t Commerce June 9, 2008). On June 16, 2008, however, Commerce published its Final Determination, which adopted the nails test, and used it to calculate an AD margin of zero percent for Paslode and 21.24 percent for Xingya. Final Determination, 73 Fed. Reg. at 33,981.

In August 2008, the plaintiffs filed a complaint contesting the Final Determination. In February 2009, the plaintiffs filed a motion for judgment on the agency record pursuant to USCIT Rule 56.2.

Standard Of Review

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). The court will uphold Commerce’s final determinations in AD investigations unless they are “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).

Discussion

I. Reasonable Time under 19 U.S.C. § 1677m(g)

The plaintiffs allege that Commerce’s actions deprived them of their due process rights under the Fifth Amendment. (Mem. of Law in Supp. of Pis.’ Rule 56.2 Mot. for J. Upon the Agency R. (“Pis.’ Mem.”) 12-20.) The plaintiffs claim that by providing the domestic industry only sixteen days to comment on the nails test, Commerce did not afford enough time to submit meaningful comments to demonstrate all of the nails test’s errors. (See Id. at 15.) In support of their position that the comment period was unreasonable, the plaintiffs cite the facts that Commerce needed “several months” to develop the nails test, that Commerce typically affords parties fifty days to comment on preliminary determinations, 4 and that Commerce provided the public over thirty days to comment. {Id.) This claim lacks merit.

Congress has provided a fair process for commenting within the statutory language of 19 U.S.C. § 1677m. See 19 U.S.C. § 1677m(g). Subsection (g) provides that:

Information that is submitted on a timely basis to the administering authority or the Commission during the course of a proceeding under this subtitle shall be subject to comment by other parties to the proceeding within such reasonable time as the administering authority or the Commission shall provide. The administering authority and the Commission, before making a final determination . . . shall cease collecting information and shall provide the parties with a final opportunity to comment on the information obtained by the administering authority or the Commission .. . upon which the parties have not previously had an opportunity to comment. Comments containing new factual information shall be disregarded.

19 U.S.C. § 1677m(g). Whether or not a constitutional due process-’ right exists in these circumstances is an issue that need not be decided here because such a right would not require any more time to be afforded to the plaintiffs than is already required by statute. If Commerce provides a time period for comments that is unreasonable, it would be in violation of the statute. Compare 19 U.S.C. § 1677m(g), with Borden Inc. v. United States, 23 CIT 372, 375 n.3 (1999), rev’d on other grounds, 7 F. App’x 938, 938-39 (2001) (holding that “[t]he court applies a rule of reason in evaluating administrative due process claims”). Accordingly, the court considers the plaintiffs due process argument as a claim that Commerce violated the statutory due process requirement of 19 U.S.C. § 1677m(g).

Generally, “[w]here a right to be heard exists, due process requires that right be accommodated at a meaningful time and in a meaningful manner.” Barnhart v. United States Treasury Dep’t, 588 F. Supp. 1432, 1438 (CIT 1984). Recognizing that “[w]ith more time most parties could improve the quality of their comments,” courts ask whether there is “evidence that given more time [a plaintiff] would have, in fact, provided more meaningful comments.” Sichuan Changhong Electric Co. v. United States, 466 F. Supp. 2d 1323, 1328 (CIT 2006). If, however, a plaintiff makes thoughtful comments that Commerce addresses in its determination, then, “as a practical matter, [the plaintiff] was not substantially deprived of an opportunity to be heard before the agency.”Borden, 23 CIT at 375 n.3. This understanding has previously led the court to conclude that a comment period as brief as four days can be reasonable. See Sichuan, 466 F. Supp. 2d at 1329.

Despite having a full opportunity to demonstrate that the comment period was unreasonable by presenting the court with additional critiques of the nails test that they were not previously afforded the opportunity to develop, the plaintiffs have failed to provide any new and convincing arguments. Although the plaintiffs filed a thorough case brief, the court notes that most of their arguments are similar, if not identical, to the ones raised at the administrative level. (Compare Pis.’App. Tab 9, with Pis.’ Mem.) The plaintiffs claim that they would have made many additional arguments if they were afforded more time to comment, yet now provide only one such example. (Pis.’ Mem. 18.) They argue that the mean price was incorrectly used to calculate the standard deviation. (Id.) The plaintiffs contend that if the statistically correct median price were used, Commerce might have found dumping in this case. (Id.) Contrary to the plaintiffs claim, however, the use of a mean to calculate a standard deviation is, by definition, a perfectly acceptable statistical method. Christine Ammer & Dean S. Ammer, Dictionary of Business and Economics 397 (1977). Although median can be substituted for mean in certain situations, such a substitution is not required. See generally Yulia Gel, Weiwen Miao & Joseph L. Gastwirth, The Importance of Checking the Assumptions Underlying Statistical Analysis: Graphical Methods for Assessing Normality, 46 Jurimetrics J. 3, 26 (2005). In addition, such claims are merely speculative — the plaintiffs do not offer any numerical evidence to support their contention that using a median would yield a different result. 5

There is no evidence before the court, therefore, to suggest that the plaintiffs would have provided more meaningful comments if they were afforded additional time to comment. Accordingly, the court holds that Commerce afforded the plaintiffs a reasonable time to comment under 19 U.S.C. §, 1677m(g).

II. The Nails Test

The plaintiffs challenge the Final Determination on the grounds that the nails test violates 19 U.S.C. § 1677f-1(d)(B) and 19 C.F.R. § 351.414(f)(1)(i) and therefore, Commerce’s conclusion is not supported by substantial evidence. Specifically, the plaintiffs argue that in investigating their claim of targeted dumping, Commerce improperly considered only identical products, used a statistically invalid methodology, and unreasonably defined terms. (Reply Br. of Mid Continent Nail Corporation, Davis Wire Corporation, Maze Nails and Treasure Coast Fasteners, Inc. (“Pis.’ Reply”) 6-10.) This claim lacks merit.

Under 19 U.S.C. § 1677f-1(d)(1)(B), which essentially defines the targeted dumping remedy, 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,” but only 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.” 19 U.S.C. § 1677f-1(d)(B). In addition, 19 C.F.R. § 351.414(f)(1)(i) provided that Commerce must use “standard and appropriate statistical techniques” when determining whether sales qualify for this section. 19 C.F.R. § 351.414(f)(1)(i). 6

Generally, courts lack an “independent authority to tell the [agency] how to do its job” when a statute does not specify “any Congressionally mandated procedure or methodology for assessment of the statutory tests.” U.S. Steel Group v. United States, 96 F.3d 1352, 1362 (Fed. Cir. 1996). This silence has been interpreted as “an invitation” for an agency administering unfair trade law to “perform its duties in the way it believes most suitable” and courts will uphold these decisions “[s]o long as the [agency]’s analysis does not violate any statute and is not otherwise arbitrary and capricious.” Id.

A. Commerce’s decision to consider only identical products is supported by substantial evidence.

The plaintiffs first claim that Commerce’s decision to test only identical products was in violation of the clear language of 19 U.S.C. § 1677f-1(d)(B), which instructs Commerce to consider “comparable merchandise.” (Pis.’ Reply 7.) Identical merchandise is comparable merchandise. See 19 U.S.C. § 1677(16). In some cases it may be a smaller subset of all comparable merchandise. Id. 7 In a case such as this, however, where all or virtually all the allegedly targeted sales had identical matches, the statutory language does not require Commerce to do more. 8 (Def.’s Supp. Br. and Confidential App. 2.) Based on this record, the court concludes that Commerce’s decision to consider only identical merchandise was supported by substantial evidence and was in accordance with law.

B. Commerce’s use of standard deviation is statistically valid.

The plaintiffs claim that Commerce’s use of standard deviation in the nails test is unreasonable because “[a] standard deviation is simply a descriptive measure of a population; in other words, standard deviation measures describe the dispersion of data, and then calculate how spread out prices are from the average price.” (Pis.’ Mem. 24.) The plaintiffs go on to claim that “[a]t the most basic level, then, the Department’s starting point violated the regulatory requirement that it use a ‘standard and appropriate’ statistical technique to determine whether targeting was occurring” because, contrary to Commerce’s assertion, “the standard deviation cannot validly be used as a method to calculate a ‘relative measure.’” (Id.)

Generally, a standard deviation is defined as “a measure of the tendency of individual values to differ from the mean.” Christine Ammer & Dean S. Ammer, Dictionary of Business and Economics 397 (1977). “The standard deviation is the most common measure of dispersion,” which is “the total spread of the values in a frequency distribution.” Id. at 122. In statistics, a frequency distribution is “the organization of data to show how often certain values or ranges of values occur.” Id. at 170.

As previously described, the nails test uses standard deviation to measure the dispersion of values in an exporter’s price data, to aid in identifying which of the exporter’s sales were relatively low compared to others. 9 See Proposed Methodology, 73 Fed. Reg. at 26,372. After the dispersion is identified, the nails test requires Commerce to use the thirty-three percent test to determine whether a “pattern” existed under the statute. Id. Thus, contrary to the plaintiffs’ assertions, Commerce’s use of standard deviation was, by definition, statistically valid because it was used to measure the dispersion of the sales prices. 10 This aspect of the nails test, therefore, is not in violation of 19 U.S.C. § 1677f-1(d)(B)(i).

C. The nails test’s definitions of “pattern” and “differ significantly” do not violate 19 U.S.C. § 1677f-1(d)(B)(i).

The plaintiffs further challenge Commerce’s definitions of “pattern” and “differ significantly” as arbitrary, unexplained, and unreasonable. (Pis.’ Mem. 33-35.) Particularly, the plaintiffs claim that Commerce’s use of thirty-three percent in its “pattern” definition and five percent in its “differ significantly” definition are seemingly random values with no meaning. (Id.) The plaintiffs contend that, in this case, these unreasonable definitions cause the nails test to overlook obvious targeting. 11 (Id. at 35.) This claim lacks merit.

As previously discussed, Commerce included a thirty-three percent threshold requirement in its definition of “pattern.” Issues and Decision Memorandum at 20. Commerce explained that it considered thirty-three percent reasonable for establishing a pattern of activity. Id. The court has no reason to disagree.

Commerce defined “differ significantly” as any situation when the. five percent price gap test is satisfied. Id. at 21-22. Commerce stated that it considered a five percent difference as significant, when used in combination with the thirty-three percent threshold, under the statutory language. Id. at 22. Although these tests may create a standard that is more difficult to satisfy than the domestic industry would have preferred, the nails test “does not violate any statute and is not otherwise arbitrary and capricious.” U.S. Steel Group, 96 F.3d at 1362. In other AD contexts, and for a long period of time five percent tests have been used to measure significance for AD purposes. See, e.g., 19 U.S.C. § 1677b(a)(1)(C) (1994) (using five percent test to determine home market viability); id. § 1677b(a)(1)(B)(ii)(II) (1994) .(using five percent test to determine third-country market viability); 19 C.F.R. § 351.403(d) (1998) (using five percent test to determine whether to “calculate normal value based on the sale by an affiliated party”). Furthermore, plaintiff has done nothing to attempt to establish that on this record the five percent requirement is unreasonably high. The various aspects of the nails test do not . violate the statutory language of 19 U.S.C. § 1677f-1(d)(l)(B)(i) and are applied reasonably based on this record. 12

III. Withdrawal of the Regulatory Provisions Governing Targeted Dumping in Antidumping Duty Investigations (“Revocation”), 73 Fed. Reg 74,930 (Dept. Commerce, Dec. 10, 2008).

In December 2008, Commerce issued an “interim final rule for the purpose of withdrawing the regulatory provisions governing the targeted dumping analysis in antidumping duty investigations.” Revocation, 73 Fed. Reg. at 74,930. Commerce explained that it “may have established thresholds or other criteria that have prevented the use of this comparison methodology to unmask dumping, contrary to the Congressional intent. In that case, these provisions would act to deny relief to domestic industries suffering material injury from unfairly traded imports.” Id. at 74,931. The plaintiffs now cite these statements as evidence to support their arguments that given more time they could have provided more meaningful comments and that the nails test violates 19 U.S.C. § 1677f-1(d)(B).

Contrary to this proposition, courts have made it clear that unreasonableness cannot be inferred from a subsequent withdrawal. See FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1811 (2009) (holding that an agency “need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates”); GPX Int’l Tire Corp. v. United States, 645 F. Supp. 2d 1231, 1238 (CIT 2009) (holding that “[i]f the statutes are ambiguous, it does not matter whether Commerce’s new interpretation of the statutes conflicts with its old interpretation, because the court is now looking at Commerce’s new interpretation and will give that interpretation deference if it is reasonable”).

Furthermore, in the Revocation, Commerce stated that it “believes the withdrawal of this rule is not significant. Withdrawal will allow the Department to exercise the discretion intended by the statute and, thereby, develop a practice that will allow interested parties to pursue all statutory avenues of relief in this area.” Revocation, 73 Fed. Reg. at 74,931. Commerce also provided that it “is not replacing these provisions with new provisions. Instead, the Department is Court No. 08-00225 Page 16 returning to a case-by-case adjudication, until additional experience allows the Department to gain a greater understanding of the issue.” Id. By its very terms, therefore, the Revocation is not an admission by Commerce that the nails test is unlawful — it merely demonstrates that Commerce is dubious as to whether this particular methodology should be universally applicable and announces that Commerce will continue to search for a widely applicable test. 13 Accordingly, the Revocation has no effect on the court’s conclusions in this case.

Conclusion

For the aforementioned reasons and based on this record, the court concludes that utilization of the “nails test” for the targeted dumping analysis was reasonable and Commerce’s determinations were supported by substantial evidence, and in accordance with law. Accordingly, the plaintiffs’ Rule 56.2 motion for judgment on the agency record is denied. Judgment, therefore, will be entered for the defendant.

1 The P/2 test provides “that where the weighted-average net price to an alleged targeted purchaser or region is more than 2 percent lower than the weighted-average net price to non-targeted purchasers or regions in [merchandise]/month combinations representing a preponderance of the targeted quantity, a ‘pattern’ of ‘significant’ price differences” exists. Issues and Decision Memorandum for the Final Determination of the Less-Than-Fair-Value Investigation of Coated Free Sheet Paper from the Republic of Korea, A-580-856, POR 10/01/05-09/30/06, at 3-4 (Oct. 17, 2007), available at http://ia.ita.doc.gov/frn/summary/ KOREA-SOUTH/E7-21035-l.pdf (last visited Apr. 29, 2010).

2 The plaintiffs point out that they were afforded only fourteen days to comment because Commerce made clarifications on April 24, 2008. See Investigation of Certain Steel Nails from the People’s Republic of China: Issues and Decision Memorandum, A-570-909, POI 10/01/0603/31/07, at 4 (June 6, 2008) (“Issues and Decision Memorandum”), available at http://ia.ita.doc.gov/frn/summary/PRC/E8-13474-l.pdf (last visited Apr. 29, 2010).

3 Under its methodology, Commerce must:

[Dletermine the total [volume] for which the difference between (i) the sales-weighted average price to the allegedly targeted customer and (ii) the next higher sales-weighted average price to a non-targeted customer exceeds the average price gap (weighted by sales value) for the non-targeted group. Each of the price gaps in the non-targeted group would be weighted hy the combined sales associated with the pair of prices to non-targeted customers that make up the gap.

Proposed Methodology, 73 Fed. Reg. at 26,372, amended by Issues and Decision Memorandum at 21 n.15.

4 Under 19 C.F.R. § 351.309(c)(1)(i), any interested party for a final determination in an antidumping investigation, may submit a case brief “50 days after the date of publication of the preliminary determination or results of review . . . unless the Secretary alters the time limit.” 19 C.F.R. § 351.309(c)(1)(i).

5 Furthermore, the plaintiffs have failed to establish that it would have been futile to seek additional time for comment. The plaintiffs stated at oral argument that although no formal request was made, informal conversations with Commerce indicated that a request would be denied. Given the lack of a record on this, and in the context of this case there is no reason to presume what Commerce would have done in the face of a formal request.

6 Commerce withdrew 19 C.F.R. § 351.414(f) on December 10, 2008. Withdrawal of the Regulatory Provisions Governing Targeted Dumping in Antidumping Duty Investigations (“Revocation”), 73 Fed. Reg 74,930, 74,932 (Dep’t Commerce, Dec. 10, 2008). At the time of the Final Determination, however, this regulation was effective.

7 If Commerce must use other comparable merchandise to compare to U.S. sales it must make adjustments to get close to a price which may be compared. 19 U.S.C. § 1677b(a)(6)(C)(ii); 19 C.P.R. § 351.411. These adjustments provide an opportunity for the introduction of inaccuracies into the process.

8 In fact, [¶] ]] percent of the allegedly targeted sales had identical matches. (Def.’s Supp. Br. and Confidential App. 2.) Confidential Data Deleted)

9 The plaintiffs also contend that Commerce’s reliance on the word “low” is ultra vires because it is not used within the statute. (Pis.’ Mem. 24-25.) Although the plaintiffs are correct that the word “low” does not appear within the language of 19 U.S.C. § 1677f-1(d)(B), Commerce explains that this interpretation “strikes a balance between two extremes, the first being where any price below the average price is sufficient to distinguish the alleged target from others ... and the second being where only prices at the very bottom of the price distribution are sufficient to distinguish the alleged target from others.” Issues and Decision Memorandum at 17.

10 Based on the evidence, the court is not convinced that the P/2 test is an inherently better test. The P/2 test, which draws a hard line at two-percent, is arguably only well suited for a particular type of market. Hypothetically, if the prices of the market greatly varied, most prices are likely to satisfy the two-percent requirement and this test may capture too many sales. Alternatively, if the prices were nearly uniform, few sales would satisfy the two-percent threshold and the test may not capture enough. In contrast, a standard deviation can be calculated for all types of dispersions and therefore, provides Commerce with a consistent method to analyze all markets.

11 The plaintiffs spend several pages in their brief detailing hypothetical data sets in 'an attempt to illustrate this point and thus, expose Commerce’s test as unreasonable. (See Pis. Mem. 28-31.) The plaintiffs argue that these examples clearly illustrate “targeted dumping” under 19 U.S.C. § 1677f-1(d)(B)(i), but would not be classified as such under Commerce’s test. (Id. at 32.) The plaintiffs further contend that much like these examples, the facts of this case clearly support a finding of targeted dumping and that any finding otherwise cannot be supported by substantial evidence. (Id. at 29-30.) The plaintiffs’ examples, however, are unconvincing because they oversimplify a market. Each example contains only a few hypothetical prices spread out at a great variance, creating a market where all of the extremely low prices fall within one standard deviation of the average price. (See id. at 28-31.) Such a result occurs because the hypothetical markets also contain extremely high prices that offset the low ones. (See Id.) The price variation of these markets are unrealistic, and therefore, raise few practical concerns regarding this methodology.

12 The plaintiffs also contend that Commerce’s test masks targeted dumping because it improperly averages all sales, both allegedly targeted and non-targeted to calculate the average-mean price. (Pis.’ Mem. 25-26.) The plaintiffs claim that this practice is “distorting or biasing the comparison to a finding that targeting does not exist.” (Id. at 26.) While including the alleged targeted sales in the average-mean calculation could lower the mean, excluding such sales could lead to the opposite result, perhaps raising the mean too high and increasing the chance'that an otherwise non-targeted sale be classified as targeted. An inclusion of these prices, therefore, is no less reasonable than the exclusion that the plaintiffs desire.

13 The court notes that the nails test has been used by Commerce in three subsequent investigations, two of which occurred after the issuance of the Revocation. See Polyethylene Retail Carrier Bags from Indonesia: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 74 Fed. Reg. 56,807, 56,809 (Dep’t Commerce Nov. 3, 2009); Polyethylene Retail Carrier Bags From Taiwan: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 74 Fed. Reg. 55,183, 55,188 (Dep’t Commerce Oct. 27, 2009); Certain New Pneumatic Off-The-Road Tires from the People’s Republic of China: Final Affirmative Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances, 73 Fed. Reg. 40,485, 40,485 (Dep’t Commerce July 15, 2008).