coneurring-in-part, dissenting-in-part.
I agree that the Court of International Trade did not err in Borden I in rejecting the 46.67 percent anti-dumping margin originally imposed by Commerce. I also agree that, in the circumstances of this case, the Court of International Trade did not abuse its discretion in Borden II in refusing to allow Commerce a second opportunity to attempt to corroborate the 46.67 percent rate with a new methodology. I do not agree, however, that in Borden I the Court of International Trade did not impose an anti-dumping margin ceiling on Commerce for purposes of the remand proceedings. I believe that the court did impose such a ceiling and that it did so improperly. Accordingly, I would vacate the decision of the Court of International Trade and would remand the case to the court with the instruction that Commerce be given the opportunity to determine an anti-dumping margin for De Ceceo (albeit not 46.67 percent) unfettered by an imposed ceiling. I thus respectfully dissent-in-part from the court’s decision.
I.
I turn first to the facts. In Borden I, the Court of International Trade held that Commerce had not sufficiently established that De Ceceo was uncooperative. It therefore remanded the case to Commerce for reconsideration and redetermination as to the anti-dumping margin. See Borden, Inc. v. United States, 4 F.Supp.2d 1221, 1247-48 (Ct. Int’l Trade 1998). The Court of International Trade also held that, on remand, Commerce could not rely on the 46.67 percent margin rate, which the court stated was “thoroughly discredited.” Id.
*1036The majority does not interpret the decision of the Court of International Trade in Borden I as imposing a maximum anti-dumping margin rate on Commerce for purposes of the remand proceedings. The majority states that “the court’s remand order impose[d] no limitation on Commerce at all.” According to the majority, “[rjather than limiting Commerce’s discretion, the Court of International Trade merely informed Commerce that it might satisfy its burden of providing a rate that was corroborated and not discredited by using a margin that had been verified.” In the majority’s view, the Court of International Trade merely “suggested” that Commerce might use the 24.31 percent margin rate. Most respectfully, I must disagree. I believe it is clear that the Court of International Trade did set a ceiling on the anti-dumping margin rate that Commerce could impose on remand.
I begin with the court’s decision in Borden I. In setting forth the options available to Commerce on remand, the court stated:
The possibility does exist that De Cec-co’s “true” margin may be in the very high range selected by Commerce, because that possibility cannot be eliminated without verification of De Cecco’s own data. Commerce concludes from this mere possibility ... that it is probable that an appropriate margin is in that range. There is simply nothing to support such an inference. Accordingly, if Commerce properly draws an adverse inference, it may use the highest verified margin of [24.31%], as, under these facts, even that margin is very likely to be adverse to De Ceceo. If Commerce does not draw an adverse inference, it may apply a lower rate, including the all others’ rate.
Borden I, .4 F.Supp.2d at 1247.
I think that the only fair reading of this statement is that Commerce could go no higher than a rate of 24.31 percent. Commerce itself understood Borden I to impose a ceiling on it. In the remand determination it stated: “[T]he Court has instructed us to select a margin no higher than the highest calculated and verified weighted-average margin for a cooperative respondent in the investigation: [24.31] percent. Because we have been so instructed, we have applied this rate as adverse facts available.” Redetermination on Remand: Final Determination of Sales at Less than Fair Value: Certain Pasta From Italy at 15 (Aug. 28, 1998). Significantly, in Borden II, its decision after remand, the Court of International Trade did not state that Commerce had misunderstand its order. I believe that it is reasonable to expect that the court would have done so in order to protect the record if in fact it had not imposed a ceiling. Finally, I also find it significant that, on appeal, De Ceceo agreed that the Court of International Trade had imposed a ceiling on Commerce. In sum, in my view, the record before us renders inescapable the conclusion that, in Borden I, the Court of International Trade told Commerce that 24.31 percent was the maximum anti-dumping margin that it could impose on De Ceceo if it found it to be non-cooperative. I am unable to agree with the majority that the court merely “suggested” a rate to Commerce.
II.
I believe that, in setting a ceiling for the anti-dumping margin that Commerce could impose on remand, the Court of International Trade erred as a matter of law. The statute at issue, 19 U.S.C. § 1677e(b), vests Commerce with broad discretion in the selection of an anti-dumping margin in the case of a non-cooperating respondent. At the very least, it certainly does not set forth any express limitation on the anti-dumping margin that may be imposed. Indeed, the majority recognizes this, for it states: “[I]t is clear ... that the statute has no requirement that Commerce is limited to the highest rate imposed on a cooperating company when selecting a rate for a non-cooperating company.” In Florida Power & Light Co. v. Lorion, 470 U.S. 729, *1037744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985), the Supreme Court stated:
If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. The reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.
In my view, the Court of International Trade impermissibly limited Commerce’s discretion on remand. I agree with the majority that Commerce’s discretion in a case such as this is not unbounded. Moreover, as noted above, I also agree with the majority that the court did not err in refusing to reconsider Commerce’s attempt to impose the 46.67 percent margin rate. However, it is one thing to say that the 46.67 margin rate was “discredited.” It is a far different thing to say, as the Court of International Trade did, that on remand no rate above 24.31 percent was permissible. I believe that, in line with Florida Power, on remand Commerce should have been allowed to select another margin rate, as the government urges on appeal.
For the foregoing reasons, I would vacate the decision of the Court of International Trade in Borden II to the extent that it imposes a 24.31 percent anti-dumping margin on De Ceceo. I would remand the case to the court with the instruction that there be a further remand to Commerce for the setting of an anti-dumping margin rate less than 46.67 percent, but not limited to 24.31 percent.