Slip Op. 10-69
UNITED STATES COURT OF INTERNATIONAL TRADE
AMANDA FOODS (VIETNAM) LTD.,
et al.,
Plaintiffs,
–v–
UNITED STATES, Before: Pogue, Judge
Defendant, Consol. Court No. 08-00301
– and –
AD HOC SHRIMP TRADE
ACTION COMMITTEE,
Defendant-Intervenor.
OPINION AND ORDER
[Remand to Department of Commerce for further consideration of
appropriate separate rates for non-individually investigated
respondents]
Dated: June 17, 2010
Mayer Brown LLP (Matthew J. McConkey and Jeffery C. Lowe)
for Plaintiff Amanda Foods (Vietnam) Ltd.
Thompson Hine LLP (Matthew R. Nicely and Christopher M.
Rassi) and Winston & Strawn LLP (William H. Barringer and Valerie
S. Ellis) for Consolidated Plaintiffs Ca Mau Seafood Joint Stock
Company; Cadovimex Seafood Import-Export and Processing Joint-
Stock Company; Cafatex Fishery Joint Stock Corporation; Can Tho
Agricultural and Animal Products Import Export Company; Coastal
Fisheries Development Corporation; C.P. Vietnam Livestock Co.,
Ltd.; Cuulong Seaproducts Company; Danang Seaproducts Import
Export Corporation; Investment Commerce Fisheries Corporation;
Minh Hai Export Frozen Seafood Processing Joint-Stock Company;
Minh Hai Joint-Stock Seafoods Processing Company; Ngoc Sinh
Private Enterprise; Nha Trang Fisheries Joint Stock Company; Nha
Trang Seaproduct Company; Phu Cuong Seafood Processing & Import-
Export Co., Ltd.; Sao Ta Foods Joint Stock Company; Soc Trang
Aquatic Products and General Import-Export Company; Thuan Phuoc
Seafoods and Trading Corporation; UTXI Aquatic Products
Consol. Court No. 08-00301 Page 2
Processing Company; Viet Foods Co., Ltd.; Kim Anh Co., Ltd.;
Phuong Nam Co., Ltd.
Tony West, Assitant Attorney General; Jeanne E. Davidson,
Director; Franklin E. White, Jr., Assistant Director, Commercial
Litigation Branch, Civil Division, United States Department of
Justice (Stephen C. Tosini), and, of counsel, Jonathan M.
Zielinski, Senior Attorney, Office of the Chief Counsel for
Import Administration, Department of Commerce, for Defendant
United States.
Picard Kentz & Rowe LLP (Andrew W. Kentz and Nathaniel M.
Rickard)for Defendant-Intervenor Ad Hoc Shrimp Trade Action
Committee.
Pogue, Judge: This consolidated action is again before the
court following the initial remand of the final results of the
second administrative review of the antidumping duty order
covering frozen warmwater shrimp from the Socialist Republic of
Vietnam.1 Plaintiffs are cooperative non-investigated
respondents in the administrative review who have established
their entitlement to a separate rate. In the review, the United
States Department of Commerce (“Commerce” or “the Department”)
determined Plaintiffs’ dumping margins to be equal to the nonzero
rates assigned to Plaintiffs in the investigation underlying this
order, rather than to the weighted average of margins calculated
for the individually-investigated respondents. All individually-
1
See Amanda Foods (Vietnam) Ltd. v. United States, __ CIT
__, 647 F. Supp. 2d 1368, 1374-75, 1379-82 (2009)(“Amanda
I”)(remanding Certain Frozen Warmwater Shrimp from the Socialist
Republic of Vietnam, 73 Fed. Reg. 52,273 (Dep’t Commerce Sept. 9,
2008)(final results and final partial rescission of antidumping
duty administrative review) (“Final Results”)).
Consol. Court No. 08-00301 Page 3
investigated respondents’ margins were zero or de minimis. In
Amanda I, the court remanded Commerce’s decision, directing the
Department to assign to Plaintiffs the weighted average of the
mandatory respondents’ rates, or to provide justification, based
on substantial evidence on the record, for using another rate.2
Amanda I, __ CIT at __, 647 F. Supp. 2d at 1382.
As explained more fully below, by imputing to cooperative
respondents the behavior of uncooperative respondents, Commerce
has failed to comply with the court’s remand order in Amanda I.
The Department has again failed to provide a rational connection
between the facts found and the rates applied. Accordingly, the
court again remands to Commerce the question of appropriate
antidumping duty rates for Plaintiffs.
BACKGROUND
A. Amanda I
Commerce’s choice of assessment rate for cooperative non-
investigated respondents in the second review of this antidumping
duty order is fully chronicled in the court’s opinion in Amanda
I, 647 F. Supp. 2d at 1374-75. Briefly:
2
While some of the court’s conclusions are summarized in
the Background section of this opinion, familiarity with the
court’s decision in Amanda I is presumed. All other issues
originally raised by Plaintiffs in this consolidated action have
been dismissed pursuant to stipulation between the parties. (See
Stipulation of Partial Dismissal [Dkt. No. 83]; Order of
Dismissal [Dkt. No. 84].)
Consol. Court No. 08-00301 Page 4
[R]ather than averaging the two mandatory respondents’
[zero and de minimis] rates and using the resulting
average for the separate rate companies, Commerce
assigned to the separate rate companies the most recent
rate that each had received in a prior proceeding.
Specifically, the Department applied the rate that the
separate rate companies had received in the original
investigation, based on sales made prior to the
imposition of the dumping order . . . .
Id. at 1374 (citing Final Results, 73 Fed. Reg. at 52,275-76).3
In Amanda I, the court noted that “[t]he sole reasoning that
the Department provided for this decision was that thirty-five
companies received margins based on [adverse facts available
(“AFA”)] and that ‘the circumstances of this review are similar
to those of the preceding review.’” Id. at 1381 (quoting Final
Results, 73 Fed. Reg. at 52,275 and citing Issues & Decision
Mem., A-552-802, 2d AR 02/01/06-01/31/07 (Sept. 2, 2008), Admin.
R. Pub. Doc. 231 (“I & D Mem.”)).
The court found this analysis insufficient, concluding that
“there is no basis in the [antidumping] statute for penalizing
cooperative uninvestigated respondents due solely to the presence
of non-cooperative uninvestigated respondents who receive a
margin based on AFA,” id. (citing Yantai Oriental Juice Co. v.
United States, 27 CIT 477, 487 (2003)), and that “nowhere in the
3
Separate rate companies that were individually examined in
the first administrative review of this antidumping duty order
were assigned the rate they received in the first review. Final
Results, 73 Fed. Reg. at 52,275-76. However, none of the rates
assigned based on rates from the first review are at issue in
this case. See supra note 2.
Consol. Court No. 08-00301 Page 5
record [did] Commerce provide sufficient reasoning linking the
evidence to its conclusion that margins . . . established during
the period of investigation, prior to the imposition of the
antidumping duty order, are ‘based on the best available
information and establish[] [the relevant] antidumping margins as
accurately as possible,’” id. at 1382 (quoting Shakeproof
Assembly Components, Div. of Ill. Tool Works, Inc. v. United
States, 268 F.3d 1376, 1382 (Fed. Cir. 2001)).4
B. Remand Results
In its remand redetermination, the Department continues to
defend as reasonable its decision “to assign the margin of 4.57
percent, the margin calculated for cooperative separate rate
respondents in the underlying investigation, to the separate rate
respondents in the instant review with no history of a calculated
4
While the Court of Appeals for the Federal Circuit has
noted that the requirement that Commerce use the “best available
information” may not always be helpful and unambiguous, see
Dorbest Ltd. v. United States, Nos. 2009-1257, 2009-1266, 2010 WL
1931677, at *7 (Fed. Cir. May 14, 2010), and that this
requirement may not be used to demand of Commerce more than is
expressly required by more specific relevant provisions of the
antidumping statute, see id. at *8, it remains the case that, to
be supported by substantial evidence, Commerce’s determinations
must be supported by a rational link to information which may be
used to help approximate respondents’ actual pricing behavior,
and that Commerce does not have discretion to select dumping
margins “with no relationship to the respondent’s actual dumping
margin.” F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v.
United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000).
Consol. Court No. 08-00301 Page 6
margin,” Final Results of Redetermination Pursuant to Court
Remand (Mar. 3, 2010)(“Remand Results”) at 13, as well as its
decision to assign to Minh Hai Joint-Stock Seafoods Processing
Company a margin of 4.30 percent, the rate received by this
company in the original investigation, based on its own data. See
id. at 4, 22.
The Department argues that Section 735(c)(5) of the Tariff
Act of 1930, as amended, 19 U.S.C. § 1673d(c)(5)(2006)5 (the
“all-others rate” provision for investigations) – the statutory
provision upon which the Department usually relies in
establishing dumping margins for cooperative respondents not
selected for individual examination in an administrative review6
– “articulates a preference that the Department avoid zero, de
minimis rates or rates based entirely on facts available” when it
determines the appropriate dumping margins for cooperative
uninvestigated respondents. Id. at 14. Further, Commerce
contends that the existence in the record of “evidence of dumped
sales in the prior [period of review (“POR”)] and instant POR,”
id. at 15, renders reasonable the agency’s choice of dumping
5
Further citation to the Tariff Act of 1930, as amended, is
to Title 19 of the U.S. Code, 2006 edition.
6
See, e.g., Longkou Haimeng Mach. Co. v. United States, __
CIT __, 581 F. Supp. 2d 1344, 1359 (2008)(discussing and
upholding this practice as in accordance with the statutory
scheme).
Consol. Court No. 08-00301 Page 7
margins for Plaintiffs, see id. at 15-18, because “selecting
rates from prior segments . . . reasonably reflects the existence
of dumping under the order[.]” Id. at 18.
The Department points to four particulars in the record as
evidence supporting the dumping margins assigned to Plaintiffs
for the POR in question – the fact that two mandatory respondents
received rates based on AFA in the first review; transaction-
specific above-de minimis dumping margins for at least one
mandatory respondent in the second review; the existence of
uncooperative respondents in the second review; and the fact that
some of the subject merchandise entered during the POR came from
producers/exporters who were assessed cash deposit rates based on
AFA but who nevertheless did not request to be reviewed. Id. at
16-18.
Plaintiffs contend that the Department has failed to comply
with the court’s order in Amanda I because the margins assigned
are not supported by substantial evidence on the record. (See
generally Comments on Final Results of Redetermination Pursuant
to Ct. Remand on Behalf of [Pls.] (“Pls.’ Comments”).)
Specifically, Plaintiffs argue that Commerce continues to offer
as evidence the imputation of dumping to Plaintiffs based on the
presence of uncooperative respondents in the first and second
reviews, despite the court’s holding in Amanda I that this fact
alone cannot constitute substantial evidence supporting the
Consol. Court No. 08-00301 Page 8
reasonableness of margins assigned to cooperative Plaintiffs.
(See Pls.’ Comments at 2-4, 6-8.) With regard to Commerce’s
reliance on transaction-specific dumping margins found for one of
the mandatory respondents, Plaintiffs argue that “Commerce cannot
have it both ways; it cannot assign an overall de minimis margin
to mandatory respondents, yet use individual comparisons from
those respondents’ margin calculations to justify application of
an above-de minimis margin to non-mandatory respondents.” (Id. at
5.)
STANDARD OF REVIEW
“The court will sustain the Department’s determination upon
remand if it complies with the court’s remand order, is supported
by substantial evidence on the record, and is otherwise in
accordance with law.” Jinan Yipin Corp. v. United States, __ CIT
__, 637 F. Supp. 2d 1183, 1185 (2009) (citing 19 U.S.C.
§ 1516a(b)(1)(B)(i)).
“Substantial evidence” is “such evidence as a reasonable
mind might accept to support a conclusion.” Universal Camera
Corp. v. NLRB, 340 U.S. 474, 477 (1951) (quotation marks and
citations omitted). “The specific determination [the court]
make[s] is whether the evidence and reasonable inferences from
the record support [Commerce’s] finding.” Daewoo Elecs. Co. v.
Int’l Union of Elec., Elec., Technical, Salaried & Mach. Workers,
AFL-CIO, 6 F.3d 1511, 1520 (Fed. Cir. 1993) (internal quotation
Consol. Court No. 08-00301 Page 9
marks and citation omitted). That is, “[a] factual finding is
supported by substantial evidence when the factfinder could
rationally draw support for the finding from the relevant record
evidence.” Penrod Drilling Co. v. Johnson, 905 F.2d 84, 87 (5th
Cir. 1990). Further, to be supported by substantial evidence,
agency findings must be “reached by reasoned decision-making,
including . . . a reasoned explanation supported by a stated
connection between the facts found and the choice made.” Elec.
Consumers Res. Council v. Fed. Energy Regulatory Comm’n, 747 F.2d
1511, 1513 (D.C. Cir. 1984) (citing Burlington Truck Lines, Inc.
v. United States, 371 U.S. 156, 168 (1962)) (quotation marks and
additional citations omitted).
DISCUSSION
The court first considers the legal premise for Commerce’s
remand decision, concluding that the agency’s statutory
construction is not reasonable and therefore not entitled to
Chevron deference.7 The court then examines the evidentiary
7
To the extent that Commerce’s determination depends upon a
particular construction of its statutory authority, the court
first looks to whether “Congress has directly spoken to the
precise question at issue,” Chevron, U.S.A. Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842 (1984), using traditional
tools of statutory construction. Id. at 843 n.9; see also Timex
V.I., Inc. v. United States, 157 F.3d 879, 882 (Fed. Cir. 1998)
(citation omitted)). “[I]f the text answers the question, that
is the end of the matter.” Timex, 157 F.3d at 882 (citations
omitted). If, after using traditional tools of statutory
Consol. Court No. 08-00301 Page 10
bases for the Department’s remand decision, concluding that the
dumping margins assigned to Plaintiffs on remand are not
supported by substantial evidence.
A. Commerce’s Statutory Construction on Remand is Not Entitled
to Deference.
No statutory or regulatory provision directly addresses the
methodology to be employed when calculating a dumping margin for
companies not selected for individual investigation where
Commerce limits its examination in an administrative review.
Instead, as noted above, Commerce generally relies on the “all
others rate” provision governing investigations under the
antidumping statute, 19 U.S.C. § 1673d(c)(5). Remand Results at
14 (“Generally we have looked to [19 U.S.C. § 1673d(c)(5)], which
provides instructions for calculating the all-others rate in an
investigation, for guidance when calculating the rate for
respondents we did not examine individually in an administrative
construction, the court cannot conclude that the statute itself
answers the question at issue, then Commerce’s statutory
interpretation is entitled to deference so long as it is
reasonable. See United States v. Mead Corp., 533 U.S. 218, 229
(2001); Chevron, 467 U.S. at 843; Pesquera Mares Australes Ltda.
v. United States, 266 F.3d 1372, 1382 (Fed. Cir. 2001)
(“[S]tatutory interpretations articulated by Commerce during its
antidumping proceedings are entitled to judicial deference under
Chevron.”); Koyo Seiko Co. v. United States, 36 F.3d 1565, 1573
(Fed. Cir. 1994) (“In a situation where Congress has not provided
clear guidance on an issue, Chevron requires us to defer to the
agency’s interpretation of its own statute as long as that
interpretation is reasonable.”).
Consol. Court No. 08-00301 Page 11
review.”). See also Final Results, 73 Fed. Reg. at 52,274
(characterizing the Department’s practice in this regard in
language mirroring that found in 19 U.S.C. § 1673d(c)(5)); I & D
Mem. at 18-19 (relying on 19 U.S.C. § 1673d(c)(5) and its
accompanying provision in the Statement of Administrative Action
to justify choice of separate rate in this case); Longkou, __ CIT
__, 581 F. Supp. 2d at 1359 (discussing and upholding this
practice as in accordance with the statutory scheme).
When Commerce interpreted this all-others rate provision in
its remand determination, it concluded that the provision
generally disfavors the use of zero and de minimis margins in
calculating dumping margins for cooperative uninvestigated
companies. Remand Results at 26. Commerce then relied on this
interpretation in deciding not to base the dumping margins
assigned to Plaintiffs on the zero and de minimis margins found
for all individually investigated respondents in the second
review. Id. (“It is because of the statute’s clear preference to
avoid using de minimis/zero and AFA rates in the [all-others
rate] average that we have not used any of these rates in
assigning a rate to the non-examined companies.”).8
8
See also Remand Results at 14-15 (arguing that 19 U.S.C.
§ 1673d(c)(5) “articulates a preference that the Department avoid
zero, de minimis rates or rates based entirely on facts available
when it determines the all others rate,” and explaining that “the
Department [therefore] consistently seeks to avoid the use of
total facts available, zero and de minimis margins in determining
Consol. Court No. 08-00301 Page 12
In reviewing a decision which the agency seeks to justify as
compelled or preferred by a particular statutory provision, the
court first looks to the text of the statute, to determine
whether “Congress has directly spoken to the precise question at
issue.” Chevron, 467 U.S. at 842. See also Timex, 157 F.3d at
882.
The statutory provision at issue, Section 1673d(c)(5),
provides a general rule and an exception:
(A) General rule
For purposes of this subsection and section
1673b(d) of this title, the estimated all-others rate
shall be an amount equal to the weighted average of the
estimated weighted average dumping margins established
for exporters and producers individually investigated,
excluding any zero and de minimis margins, and any
margins determined entirely under section 1677e of this
title.
non-selected rates in administrative reviews, in order to
implement this statutory preference”); id. at 22-23 (“[T]he
statute clearly disfavors the use of de minimis or zero margins
in the calculation of the ‘all-others’ average rate in an
investigation. . . . As we . . . calculated only zero and de
minimis rates for the individually examined respondents . . ., we
considered the statutory preference to avoid the use of these
rates in the average. . . . Therefore, taking guidance from
[19 U.S.C. § 1673d(c)(5)] addressing circumstances where the
Department calculates zero or de minimis rates, . . . rather than
using these disfavored rates, we looked to another reasonable
method to assign rates to non-individually examined
respondents.”); (Def.’s Resp. to Pls.’ Remand Comments (“Def.’s
Resp.”) at 5 (“Commerce explained that 19 U.S.C. § 1673d(c)(5),
to which Commerce refers for guidance regarding how to assign
rates to separate rate companies, expresses a preference for not
relying upon rates that are zero, de minimis, or based entirely
upon facts available. . . . [T]his statutory preference . . .
supports Commerce’s methodology.”)).
Consol. Court No. 08-00301 Page 13
(B) Exception
If the estimated weighted average dumping margins
established for all exporters and producers
individually investigated are zero or de minimis
margins, or are determined entirely under section 1677e
of this title, [Commerce] may use any reasonable method
to establish the estimated all-others rate for
exporters and producers not individually investigated,
including averaging the estimated weighted average
dumping margins determined for the exporters and
producers individually investigated.
19 U.S.C. § 1673d(c)(5)(A) & (B).
By its plain terms, this statutory provision’s intended
application is to administrative proceedings covered under
Sections 1673b and 1673d of Title 19 – that is, to preliminary
and final determinations in investigations of sales at less than
fair value underlying the imposition of an antidumping duty
order. Therefore, the court cannot conclude that “Congress has
directly spoken [in this provision or elsewhere in the
antidumping statute] to the precise question at issue,” Chevron,
467 U.S. at 842 – i.e., the court cannot conclude that Congress
has directly addressed the issue of whether Commerce must avoid
using zero or de minimis dumping margins, to the extent that
other rates are available, when calculating dumping margins for
cooperative non-individually investigated companies in an
administrative review. Accordingly, the court must determine
whether Commerce’s statutory interpretation is reasonable and
therefore entitled to deference. See id. at 843-44. As explained
Consol. Court No. 08-00301 Page 14
below, the court concludes that it is not.
Commerce interprets Section 1673d(c)(5) to provide a general
congressional preference, applicable both in investigations and
administrative reviews, that Commerce avoid using zero or de
minimis margins to the extent possible when assigning dumping
margins to cooperative uninvestigated respondents. See Remand
Results at 26.9 However, subsection 1673d(c)(5)(B) provides an
exception to the preference, expressed in subsection
1673d(c)(5)(A), for excluding zero and de minimis margins from
the all-others rate calculation. Subsection (B) provides, inter
alia, that where, as here, all mandatory respondents receive zero
or de minimis dumping margins, the rule expressed in (A) does not
apply. Subsection (B) then states that, in such cases, averaging
the mandatory respondents’ zero and de minimis dumping margins
may serve as a reasonable method of establishing the all-others
rate. 19 U.S.C. § 1673d(c)(5)(B).10
9
See also supra note 8.
10
The court notes the Department’s characterization that
“the statute contemplates that [Commerce] may use an average of
the zero, de minimis and rates based entirely on facts available”
to arrive at an all-others rate in this case pursuant to
19 U.S.C. § 1673d(c)(5)(B). Remand Results at 15. However,
despite the presence of a rate based on AFA assigned to the
Vietnam-wide entity in the second review, Final Results, 73 Fed.
Reg. at 52,275, the statute states only that “dumping margins
determined for the exporters and producers individually
investigated” may be averaged to arrive at the all-others rate.
19 U.S.C. § 1673d(c)(5)(B) (emphasis added). Because the margins
for all individually investigated exporters/producers in the
Consol. Court No. 08-00301 Page 15
Thus, while Commerce is correct that the statute disfavors
including zero and de minimis margins in the all-others rate
calculation when positive non-FA-based rates for individually
investigated respondents are available, 19 U.S.C.
§ 1673d(c)(5)(A),11 it is an impermissible construction of this
provision to extend its disfavor to situations where, as here,
“the estimated weighted average dumping margins established for
all exporters and producers individually investigated are zero or
de minimis margins,” 19 U.S.C. § 1673d(c)(5)(B) (emphasis added).
This extension is impermissible because the statute explicitly
provides an exemption from the preference against using zero or
instant review were zero or de minimis, those portions of the
statute which deal with situations where some or all individually
investigated companies receive rates based entirely on facts
available are not applicable here. The court will therefore
refer only to those portions of the statute that deal with zero
or de minimis margins for mandatory respondents.
11
See Longkou, __ CIT __, 581 F. Supp. 2d at 1360
(upholding different treatment of mandatory respondents’ zero/de
minimis and above-de minimis margins for purposes of calculating
the all-others rate pursuant to 19 U.S.C. § 1673d(c)(5)(A) as an
“inherent and accepted part” of the statutory scheme). The
Department relies on Longkou to support its argument that a
statutory preference against the use of zero/de minimis margins
in calculating the all-others rate supports the reasonableness of
Commerce’s choice of separate rate in this case. Remand Results
at 22-23. However, because in Longkou the Department relied on,
and the court construed, subsection (A) of section 1673d(c)(5),
rather than subsection (B), the issue presented in Longkou and
the holding of that case cannot support the reasonableness of the
Department’s reliance on subsection (B) – which creates an
exception to the rule expressed in subsection (A) – in the case
at bar. See Longkou, __ CIT at __, 581 F. Supp. 2d at 1360.
Consol. Court No. 08-00301 Page 16
de minimis margins in calculating the all-others rate for the
situation at issue here. Id.
Simply put, when a statutory provision specifically lists
“averaging the [zero and de minimis] estimated weighted average
dumping margins determined for the exporters and producers
individually investigated” as the sole provided example of “a
reasonable method to establish the estimated all-others rate”
when all mandatory respondents’ margins are zero or de minimis,
19 U.S.C. § 1673d(c)(5)(B), it is impermissible to interpret this
provision as expressing a preference against the use of such
methodology in such situations. This must particularly be the
case when the “authoritative expression by the United States
concerning the interpretation and application of . . . this
Act”12 expressly states that the allegedly disfavored methodology
is in fact “[t]he expected method in such cases.” SAA,
1994 U.S.C.A.A.N. at 4201.13 In addition, Commerce’s
12
19 U.S.C. § 3512(d) (referring to the Statement of
Administrative Action accompanying the Uruguay Round Agreements
Act, H.R. Doc. No. 103-316 (1994), reprinted in 1994 U.S.C.A.A.N.
4040 (“SAA”)).
13
The Department recognizes that subsection 1673d(c)(5)(B)
explicitly lists averaging the mandatory respondents’ margins as
an example of a reasonable methodology for establishing the all-
others rate when all individually-investigated respondents
receive zero or de minimis margins. See Remand Results at 14-15.
However, the Department argues that this language applies only to
investigations, not administrative reviews. Id.
Commerce offers two grounds in attempting to distinguish the
circumstances of the instant administrative review from those of
Consol. Court No. 08-00301 Page 17
interpretation effectively renders the exception a nullity. See
Duncan v. Walker, 533 U.S. 167, 174 (2001) (“[A] statute ought,
upon the whole, to be so construed that, if it can be prevented,
no clause, sentence, or word shall be superfluous, void, or
insignificant.” (citation omitted)).
Accordingly, Commerce’s reliance upon an interpretation of
the statute which reads the preference expressed in subsection
1673d(c)(5)(A) into the exception to that subsection found in
subsection 1673(c)(5)(B), see Remand Results at 22-23, is
an initial investigation. First, the agency argues that
subsection (B) is intended to apply only to circumstances where
the “expected method” under that subsection would be to average
zero/de minimis rates with rates based on AFA, and never solely
to average zero and de minimis rates. See Id. at 15. Second,
Commerce argues that averaging the margins calculated for all
individually investigated companies as the all-others rate is the
“expected method” only for investigations, where no other
potential rates, such as rates from prior segments, would be
available. See id.
Commerce’s first argument in this regard is based on an
erroneous interpretation of the law. See supra note 9. Because
the provision’s “expected method” is to average only the rates
calculated for individually investigated companies, nothing
prevents the “expected method” of subsection (B) from resulting
in the averaging of zero and de minimis rates found for
individually investigated companies in an underlying
investigation, such as in situations where some uncooperative
non-investigated companies receive rates based on AFA. Hence
nothing necessarily distinguishes the circumstances of this
review from the kinds of circumstances to which subsection (B)
was intended to apply. With regard to Commerce’s second
argument, as the court explained in Amanda I, and reiterates
below, the availability of rates from prior segments does not in
itself suffice to support the reasonableness of applying such
rates to pricing behavior in subsequent periods of review, and
therefore does not necessarily bear on the reasonableness of
using section (B)’s expected method in a particular segment.
Consol. Court No. 08-00301 Page 18
unreasonable and therefore not entitled to deference. See
Chevron, 467 U.S. at 845. While section 1673d(c)(5)(A) expresses
a preference for avoiding zero and de minimis margins when
calculating the all-others rate for cooperative uninvestigated
respondents, subsection (B) exempts from this preference
situations where, as here, all individually investigated
respondents receive zero/ de minimis rates.
Contrary to Commerce’s argument, therefore,
Section 1673d(c)(5) does not support Commerce’s methodology for
establishing Plaintiffs’ dumping margins. As the court held in
Amanda I, “as a legal matter, Commerce may choose to include or
to exclude the mandatory respondents’ zero or de minimis margins
in calculating a separate rate,” 647 F. Supp. 2d at 1380, as long
as the methodology used and the rates chosen are reasonable, see
id. at 1379. By categorically excluding the mandatory
respondents’ zero and de minimis margins in calculating the
separate rate, the methodology used on remand was unreasonable.
A further remand is therefore required.
Moreover, even were Commerce’s exclusion of the mandatory
respondents’ margins from the separate rate calculation not
categorical, the court could not accept as reasonable, based on
the record here, the dumping margins assigned to Plaintiffs in
this review. It is to the consideration of that issue that the
court now turns.
Consol. Court No. 08-00301 Page 19
B. Commerce’s choice of dumping margins assigned to Plaintiffs
is not supported by substantial evidence in the record.
Because the record for this review does not contain
substantial evidence sufficient to establish a reasonable link
between the rates assigned to Plaintiffs and Plaintiffs’ pricing
behavior during the POR, Commerce’s decision in this regard is in
any case not reasonable, especially in light of the overriding
statutory purpose of accuracy in the calculation of dumping
margins. See, e.g., Parkdale, 475 F.3d at 1380 (Commerce must
calculate dumping margins “as accurately as possible”); De Cecco,
216 F.3d at 1032 (Commerce does not have discretion to select
dumping margins “with no relationship to the respondent’s actual
dumping margin”); U.S. Steel Corp. v. United States, Slip. Op.
10-28, 2010 WL 1347689, at *19 (CIT Mar. 19, 2010) (“It is well-
established that Commerce is required to calculate antidumping
duty margins as accurately as possible in each segment of a
proceeding.” (citing Rhone Poulenc, Inc. v. United States, 899
F.2d 1185, 1191 (Fed. Cir. 1990))).
The Department points to four areas in the record as
evidence in support of the dumping margins assigned to Plaintiffs
in this review:
1) the existence of a 25.76 percent rate, based on AFA, for
two mandatory respondents in the first review, as “evidence that
Consol. Court No. 08-00301 Page 20
dumping has occurred since the investigation of the underlying
order,” Remand Results at 16 (“Ground 1");
2) the fact that “[a]t least one of the respondents
individually investigated had transaction-specific margins that
were higher than the 4.57 percent rate,” id. (“Ground 2");
3) the fact that “[o]f the 63 exporters covered by the
review, 35 exporters did not submit quantity and value
questionnaire responses at the beginning stages of the
proceeding, despite confirmed receipt of each attempt [to solicit
such response],” id. at 16-17, as evidence of continued dumping
during the POR, at a rate presumed to be at least equal to 25.76
percent, the AFA rate assigned to unresponsive exporters (“Ground
3"); and
4) the fact that “entry data obtained from U.S. Customs and
Border Protection [] shows that exporters from the Vietnam-wide
entity entered subject merchandise during the POR for which a
cash deposit was paid at the rate of 25.76 percent,” id. at 17-
18, as evidence “that the cash deposit rate is reflective of the
level of actual dumping by these exporters during the POR,”
because “reviews were not requested by some of these exporters,”
id. at 18 (“Ground 4").
The court now turns to consider these evidentiary claims.
Consol. Court No. 08-00301 Page 21
1. Grounds 1, 3 & 4 – Uncooperative Respondents
Grounds 1, 3 and 4, offered as evidence in support of the
dumping margins assigned to Plaintiffs in this review, are all
based on evidence of the existence of uncooperative respondents
in the first and/or second reviews: Ground 1 refers to the
presence of uncooperative respondents in the first review;14
Ground 3 refers to the presence of uncooperative respondents in
the second review; and Ground 4 refers to the presence of
uncooperative respondents in the first review who did not request
to be reviewed in the second review.15
As the court stated in Amanda I, however, “the Department’s
reference to the existence of . . . non-cooperating companies
. . . fails to justify its choice of dumping margin for the
cooperative uninvestigated respondents,” 647 F. Supp. 2d at 1381,
and “does not provide a basis for the Department’s use of results
from a prior determination with respect to the cooperating
companies in the present case.” Id. at 1382.
All fully cooperative individually investigated respondents
14
Remand Results at 16 (“[The Department] determined to
apply AFA to two mandatory respondents. As these companies
refused to provide the Department with necessary information, the
Department was required to resort to facts available, and applied
an adverse inference, determining their dumping margins to be
25.76 percent.” (citation omitted)).
15
See Remand Results at 16 (explaining that the 25.76
percent rate was assigned to uncooperative respondents in the
first review).
Consol. Court No. 08-00301 Page 22
in both the first and second reviews received zero or de minimis
rates.16 Accordingly, when Commerce says that it has “evidence of
dumped sales in the prior POR and instant POR,” Remand Results at
15, it is referring to the presumption of dumping with regard to
the uncooperative respondents in the first and second reviews.17
But the presumption that uncooperative respondents engaged
in dumping during the POR is just that – a presumption. Because
Commerce does not actually possess accurate information with
respect to such companies’ pricing behavior during the POR, the
agency may presume that margins from prior segments constitute
“the most probative evidence of current margins because, if it
were not so, the [affected respondent], knowing of the rule,
would have produced current information showing the margin to be
less.” Rhone Poulenc, 899 F.2d at 1190 (emphasis in original).18
16
Final Results, 73 Fed. Reg. at 52,275; Certain Frozen
Warmwater Shrimp From the Socialist Republic of Vietnam, 72 Fed.
Reg. 52,052, 52,054 (Dep’t Commerce Sept. 12, 2007) (final
results of the first antidumping duty administrative review and
first new shipper review).
17
When respondents fail to cooperate, Commerce presumes the
existence of a positive dumping margin for such companies in
order to encourage the submission of accurate information with
regard to their pricing behavior during the POR. Rhone Poulenc,
899 F.2d at 1190-91.
18
See also, e.g., Gallant Ocean (Thailand) Co. v. United
States, No. 2009-1282, 2010 WL 1508198 (Fed. Cir. Apr. 16, 2010)
(“An AFA rate must be ‘a reasonably accurate estimate of the
respondent’s actual rate, albeit with some built-in increase
inteded as a deterrent to non-compliance.’ The purpose of the
AFA rate ‘is to provide respondents with an incentive to
cooperate, not to impose punitive, aberrational, or
Consol. Court No. 08-00301 Page 23
In the case at bar, however, Commerce, by limiting its
examination pursuant to 19 U.S.C. § 1677f-1(c)(2)(B), has
expressly refused to accept current information from the
cooperative non-investigated separate rate companies. It follows
that the presumption that margins established in the underlying
investigation are most probative of current dumping margins
cannot be justified on the ground that it encourages the
submission of more accurate information.19 A presumption used to
encourage some companies to submit more accurate information may
not reasonably be transposed onto companies which are expressly
prevented from submitting more accurate information.20 See Rhone
uncorroborated margins.’” (emphasis omitted)(quoting De Cecco,
216 F.3d at 1032)).
19
See also SKF USA Inc. v. United States, __ CIT __,
675 F. Supp. 2d 1264, 1276 (2009) (“Although 19 U.S.C. § 1677e(b)
does not expressly state that Commerce may not adversely affect a
party to a proceeding based upon another interested party’s
failure to cooperate, a construction permitting such an absurd
result makes a mockery of any notion of fairness. In the
specific context of the antidumping laws, a party that did not
fail to meet its obligation to cooperate, as imposed by
§ 1677e(b), is entitled by § 1675(a) and related provisions of
the antidumping law to have its margin determined accurately and
according to the relevant information on the record of the
administrative review.”); id. at 1277 (admonishing Commerce for
creating a situation where a party may obtain “a margin or
deposit rate[] that is less favorable than that which would have
resulted if it had cooperated fully, even though Commerce never
found that the party did not cooperate fully as required by
§ 1677e(b)” (internal quotation marks and citation omitted)).
20
While Commerce argues that, because it “did not attribute
AFA rates to the non-individually examined respondents,” Remand
Results at 22, its separate rate determination is not tantamount
to penalizing cooperative respondents for the non-cooperation of
Consol. Court No. 08-00301 Page 24
Poulenc, 899 F.2d at 1191 (when agency presumes margins from
prior segments to be the best information regarding current
margins for uncooperative respondents, “since the presumption is
rebuttable, it achieves th[e] [] goal [of encouraging
cooperation] without sacrificing the basic purpose of the
statute: determining current margins as accurately as possible”).
Moreover, a rebuttable presumption with respect to the
margins for some companies may not by itself serve as substantial
evidence supporting the accuracy of margins assigned to wholly
unrelated companies. See, e.g., Routen v. West, 142 F.3d 1434,
1439 (Fed. Cir. 1998) (“This court has never treated a
presumption as any form of evidence.” (citing A.C. Aukerman Co.
v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1037 (Fed. Cir. 1992)
(“[A] presumption compels the production of [a] minimum quantum
of evidence from the party against whom it operates, nothing
more. In sum, a presumption is not evidence.” (citations
omitted)); Del Vecchio v. Bowers, 296 U.S. 280, 286 (1935) (a
presumption “cannot acquire the attribute of evidence in the
claimant’s favor”); N.Y. Life Ins. Co. v. Gamer, 303 U.S. 161,
171 (1938) (“[A] presumption is not evidence and may not be given
others, id., in actuality the Department’s treatment of the
remaining Plaintiffs – essentially assigning a margin equivalent
to the highest prior margin available – appears to the court to
be no different from how it normally treats willfully non-
cooperative companies. See, e.g., Rhone Poulenc, 899 F.2d at
1190-91.
Consol. Court No. 08-00301 Page 25
weight as evidence.”))). See also Wilner v. United States, 24
F.3d 1397, 1411 (Fed. Cir. 1994) (“Presumptions merely impose ‘on
the party against whom [they are] directed the burden of going
forward with evidence to rebut or meet the presumption . . . .’”
(emphasis added) (quoting Fed. R. Evid. 301)).
Because Commerce’s Grounds 1, 3 and 4 are all based
exclusively on presumptions applicable only to the parties
against whom they are made, these grounds cannot constitute
substantial evidence to support Commerce’s choice of dumping
margins for Plaintiffs in the second review.
2. Ground 2 – Transaction-Specific Margins
Second, with regard to transaction-specific, above-de
minimis margins found in the course of investigating the
mandatory respondents, suffice it to say that, if the presence of
these transaction-specific margins failed to justify assigning an
overall above-de minimis rate for the companies whose data they
embody,21 then they certainly cannot serve to do so for the
21
The court notes that the dumping margins for the
individually investigated respondents in this review were 0.00
and 0.01 percent. Final Results, 73 Fed. Reg. at 52,275. Thus
whatever transaction-specific dumping may have been engaged in by
the individually investigated respondents, Commerce seeks to have
this data justify the imposition of 4.30 or 4.57 percent dumping
margins for Plaintiffs for the entire POR, notwithstanding the
fact that these transaction-specific margins were evidently not
significant enough to raise the overall dumping margins of the
companies whose actual data they represent above the barest of
possible minimums.
Consol. Court No. 08-00301 Page 26
remaining cooperative companies.
CONCLUSION
For all of the foregoing reasons, the court concludes that
Commerce’s argument that “selecting rates from prior segments to
apply to the nonselected companies in this review implements the
statute’s preference to avoid zero/de minimis and facts available
margins,” Remand Results at 18, is based on an unreasonable
interpretation of the statute, and that the agency’s finding that
doing so “reasonably reflects the existence of dumping under the
order [by Plaintiffs during the POR],” id., is not supported by
substantial evidence on the record. Accordingly, the 4.57
percent and 4.30 percent rates assigned to Plaintiffs are
unsupported.
On remand, therefore, Commerce must employ a reasonable
method, which may “includ[e] averaging the estimated weighted
average dumping margins determined for the exporters and
producers individually investigated,” 19 U.S.C. § 1673d(c)(5)(B).
Further, Commerce must assign to Plaintiffs dumping margins for
the second POR which are reasonable considering the evidence on
the record as a whole; to do so, Commerce may reopen the
evidentiary record if need be.22
22
To the extent that the Department finds that the record
does not currently contain sufficient evidence to support the
reasonable accuracy of dumping margins for Plaintiffs during the
POR, the court notes that neither Petitioner nor the Plaintiffs
Consol. Court No. 08-00301 Page 27
Therefore, this matter is remanded to the agency for further
consideration in accordance with this opinion. See 19 U.S.C.
§ 1516a(c)(3). Commerce shall have until ninety (90) days from
the date of this Order and Opinion to complete and file its
remand redetermination. Plaintiffs shall have until thirty (30)
days from that filing to file comments. Defendant and Defendant-
Intervenors shall have until fifteen (15) days after Plaintiffs’
comments are filed to file any reply.
It is SO ORDERED.
/s/ Donald C. Pogue
Donald C. Pogue, Judge
Dated: June 17, 2010
New York, N.Y.
object to reopening the evidentiary record. I & D Mem. at 16-17
(“If the Department elects not to use the mandatory respondents’
calculated rates to assign a separate rate, the [separate rate]
Respondents [] argue that the only alternative option is for the
Department to reopen the record and allow the [separate rate]
Respondents to supplement the record with company-specific,
count-size information as a reliable source for calculating the
separate-rate margin based on the average unit value (“AUV”) to
estimate U.S. price.”); id. at 17 (“Petitioner would not be
averse to reopening the record for the Department to determine
the separate-rate margin based on count-size specific AUV’s
reported by [separate rate] Respondents.”).