Slip Op. 11-49
UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________ : KYD, INC., : : Plaintiff, : : Before: WALLACH, Judge v. : Court No.: 09-00034 : UNITED STATES, : PUBLIC VERSION : Defendant, : : and : : POLYETHYLENE RETAIL CARRIER : BAG COMMITTEE, HILEX POLY CO., : LLC, and SUPERBAG CORPORATION, : : Defendant-Intervenors. : : [This matter is REMANDED to the U.S. Depart ment of Commerce for action consistent with this opinion.]
Dated: April 28, 2011 Riggle & Craven (David J. Craven ) for Plaintiff KYD, Inc. Tony West , Assistant Attorney General; Jeanne E. Davidson , Director, Patricia M. McCarthy , Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Carrie A. Dunsmore and Stephen C. Tosini ); and Scott D. McBride , U.S. Department of Commerce, Of Counsel, for Defendant United States. King & Spalding LLP (Stephen A. Jones and Daniel L. Schneiderman ) for DefendantIntervenors Polyethylene Retail Carrier Bag Committee, Hilex Poly Co., LLC, and Superbag Corporation.2 OPINION Wallach, Judge:
I INTRODUCTION As a U.S. importer of polyethylene retail carr ier bags (“PRCBs”) from Thailand, Plaintiff KYD, Inc. (“KYD”) continues its ch allenge to determinations made by the U.S. Department of Commerce (“Commerce”) in the 2006-07 administ rative review of the antidumping duty order covering these bags. This challenge is limited to entries of the subject merchandise that were imported by KYD from King Pac Indus trial Co., Ltd. (“King Pac”) and Master Packaging Co., Ltd. (“Master Packaging”) and are covered by this third administrative review (“the entries at issue”). The court has jurisdicti on pursuant to 28 U.S.C. § 1581(c). In May 2010, the court remanded the instant action to Commerce. See KYD, Inc. v. United States , 704 F. Supp. 2d 1323 (CIT 2010) (“KYD II ”). Familiarity with KYD II is presumed. In September 2010, Commerce issued its Final Results of Redetermination. See Final Results of Redetermination (Doc . No. 66) (“Redetermination”). Commerce is permitted to select rather than calculate an antidumping duty rate for the entries at issue. Furthermore, it may select a ra te that is adverse to KYD. However, that rate must nonetheless be supported by substantial evidence and otherwis e in accordance with law. Because the particular rate ac tually selected—122.88 percent—does not satisfy this standard with respect to the entries at issue, th is matter is again REMANDED to Commerce.

II BACKGROUND KYD commenced the instant action to challenge the final results of Commerce’s 2006-07 administrative review of an antidumping duty order covering certain plasti c bags imported from3 Thailand. See Complaint (Doc. No. 7) at 1; Polyethyl ene Retail Carrier Bags from Thailand: Final Results and Partial Rescission of Antid umping Duty Administrative Review, 74 Fed. Reg. 2,511, 2,511 (January 15, 2009) (“Final Results”); see generally KYD II , 704 F. Supp. 2d at 1323-27 (describing this third ad ministrative review). Because two exporters that are unaff iliated with KYD—King Pac and Master Packaging—impeded this administrative review, Commerce used what it calls total adverse facts available (“TAFA”) to assign each of these export ers an antidumping duty rate of 122.88 percent.
KYD II , 704 F. Supp. 2d at 1326-27. This TAFA rate ha d been applied to Ki ng Pac in the second administrative review and was the highest transac tion-specific rate alle ged in the 2003 petition.
See id. In contrast to King Pac and Master Packaging, KYD actively participated in the third administrative review by providing information about its purchases from these exporters. See id. at 1325-26. Indeed, the record str ongly suggests that Master Pack aging would not have received any form of adverse facts available (“AFA”) rate but for the information volunteered by KYD.4 See id. 1 Nonetheless, Commerce selected 122.88 pe rcent as the assessment rate for KYD’s relevant entries. See id. at 1326.
In KYD II , the court held that substantial evid ence did not support Commerce’s implicit decision to disregard KYD’ s price information. See id. at 1324. Commerce had determined the assessment rate for KYD’s entries “without re gard to the information submitted by KYD even though it made no finding under 19 U.S.C. § 1677e(b ) that KYD had failed to cooperate and no finding under 19 U.S.C. § 1677m(e) that it could decline to consider KYD’s information.” Id. The court therefore remanded the matter to Commer ce to “either consider this information in determining an assessment rate for KYD’s entries or explain why it can d ecline to do so pursuant to 19 U.S.C. § 1677m(e).” Id. at 1334. The court did not resolve KYD’s arguments “that the total adve rse facts available dumping rate that Commerce selected for King Pac and Master Packaging was improperly corroborated and impermissibly punitive.” Id. at 1328 n.6. Although the court had “previously rejected similar arguments” when it upheld appl ication of the same rate to King Pac in the

1 KYD volunteered information about a relationship between King Pac and Master Packaging, DefendantIntervenors requested that Commerce examine Master Packaging in light of this information, Commerce added Master Packaging as an additional mandatory respondent, and Commerce applied a TAFA rate to Master Packaging for failure to cooperate in that examination. See KYD II , 704 F. Supp. 2d at 1325-26. Commerce has not explicitly stated that it examined Master Packag ing because of KYD’s information. See infra Part IV.D.1. The closest that Commerce comes is in the Redetermination. See Redetermination at 1-2 (“The petitioners claimed that KYD’s submission . . . raised serious new issues that the petitioners did not expect and urged the Department to investigate the relationship between King Pac and Master Packaging. The Department added Master Packaging as an additional respondent that it would examine individually in the review on March 27, 2008.”) (internal footnote omitted). At oral argument, counsel for Commerce stat ed that the selection of Master P ackaging was not in response to the request by Defendant-Intervenors. February 9, 2011 Oral Argument at 11:13:59-11:14:55 (“This is a shorthand version of what happened actually. During the context of the review, domestics did bring up to us the fact that Master Packaging had essentially been involved in this. Then it came to the point where we did have time and we did have the ability to review one more company. And it was decided at that point; however, it was not in response to the fact that the parties had [asked us] to look at this. It was more a matter of, the fact is, we did have the time to look at one other one, and Master Packaging was on the list of those that had exported during the period of review and they had significant exports too. So it made sense that since we did have the time, essentially killing two birds with one stone. But it was not because they had requested that, and we had made that very clear. It was on the record, and we made it very clear. We were not doing it be cause they requested it, but because we had the resources to review them. . . . Whenever we do response selection it’s always based on the resources available to the agency, so at that time we determined we did have the resources to review them.”).5 second administrative review, it acknowledged that “[r]eassessment of these arguments may be appropriate in light of” Gallant O cean (Thailand) Co. v. United States , 602 F.3d 1319 (Fed. Cir. 2010) (vacating and remanding Gallant O cean (Thailand) Co. v. United States , 602 F. Supp. 2d 1337 (Wallach, J.)). Id. Three weeks after KYD II , the Federal Circuit affirmed the court’s decision concerning that second administrative review. See KYD, Inc. v. United States , 607 F.3d 760 (Fed. Cir. 2010) (affirming KYD, Inc. v. United States , 613 F. Supp. 2d 1371 (CIT 2009)) (collectively “KYD I ”); see also infra Part IV.D. On remand, Commerce explained why it declined to use KYD’s information to calculate dumping margins, see Redetermination at 4-9, and took i ssue with the court’s statement of relevant antidumping law, see id. at 3, 9-10, 15-16, 18, 20-21, 22, 23-24. In particular, Commerce reiterated its position th at “the antidumping duty statut e does not require, or even contemplate, the Department calculating separate dumping margins for in dividual importers.” Id. at 3; see also infra Parts IV.A-B.

III STANDARD OF REVIEW The court will hold unlawful a determin ation by Commerce resulting from an administrative review of an antidumping duty or der if that determination is “unsupported by substantial evidence on the reco rd, or otherwise not in acco rdance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i); see 19 U.S.C. § 1516a(a)(2)(B)(iii). A determination is supported by substantial evid ence if the record contains “evidence that a reasonable mind might accept as adequate to su pport a conclusion.” Cleo Inc. v. United States , 501 F.3d 1291, 1296 (Fed. Cir. 2007) (citing Universal Camera Corp. v. NLRB , 340 U.S. 474, 477, 71 S. Ct. 456, 95 L. Ed. 456 (1951)). Such evidence must be “more than a mere scintilla.”6 Ad Hoc Shrimp Trade Action Comm. v. United States , 618 F.3d 1316, 1321 (Fed. Cir. 2010) (quoting Ningbo Dafa Chem. Fiber Co. v. United States , 580 F.3d 1247, 1253 (Fed. Cir. 2009)). The “court reviews the record as a whole, including any evidence that ‘fairly detracts from the substantiality of the evidence,’ in determini ng whether substantial evidence exists.” Gallant , 602 F.3d at 1323 (quoting Micron Tech., Inc. v. United States , 117 F.3d 1386, 1393 (Fed. Cir. 1997)). To determine whether Commerce’s interpretation and application of an antidumping statute at issue is otherwise “in accordance w ith law,” the court must conduct the two-step analysis articulated by the Suprem e Court in Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc. , 467 U.S. 837, 842-43, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). See 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 .”). Under the first step of the Chevron analysis, the court must ascertain “whether Congress has directly spoken to the precise question at issue. If the intent of Congre ss is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Wheatland Tube Co. v. United States , 495 F.3d 1355, 1359 (Fed. Cir. 2007) (quoting Chevron , 467 U.S. at 842-43). Of particul ar importance to the instant action is the “strong presumption that ‘Congress expr esses its intent through the language it chooses’ and that the choice of words in a statute is therefore deliberate a nd reflective,” Shoshone Indian Tribe of the Wind River Re servation v. United States , 364 F.3d 1339, 1347 (Fed. Cir. 2004) (quoting INS v. Cardoza-Fonseca , 480 U.S. 421, 433 n.12, 107 S. Ct. 1207, 94 L. Ed. 2d 434 (1987)). Without more, “[i]t is not for [the court] to try to avoid the conclusion that Congress did7 not mean what it said.” Miles v. United States , 61 Cust. Ct. 245, 248, 290 F. Supp. 395 (1968) (quoting Unexcelled Chemical Corp. v. United States , 345 U.S. 59, 64, 73 S. Ct. 580, 97 L. Ed. 821 (1953)); see also Wheatland Tube , 495 F.3d at 1359. The court reaches the sec ond step of the Chevron analysis only “if the statute is silent or ambiguous with respect to the specific issue.” Wheatland Tube , 495 F.3d at 1359 (quoting Chevron , 467 U.S. at 843). Under this step, the court must evaluate whether Commerce’s interpretation “is based on a permissibl e construction of the statute.” Chevron , 467 U.S. at 843. The agency’s construction need not be the onl y reasonable interpretati on or even the most reasonable interpretation. Zenith Radio Corp. v. United States , 437 U.S. 443, 450, 98 S. Ct. 2441, 57 L. Ed. 2d 337 (1978). The court must defe r to Commerce’s reasonable interpretation of a statute even if it might have adopted another interpretation had the question first arisen in a judicial proceeding. Id.

IV DISCUSSION This action is properly limited to entries of the subject merchandise that were imported by KYD from King Pac and Master Packaging a nd are covered by the third administrative review. See infraParts IV.A-B. Because King Pac and Master Packaging were uncooperative, Commerce is required to use the facts otherwise available to de termine the amount of dumping for each of these entries. See KYD II , 704 F. Supp. 2d at 1326; 19 U.S.C. § 1677e(a). Furthermore, Commerce may selectrather than calculate an antidumping duty rate for these entries. See infraPart IV.C. Finally, precedent permits Commerce to use adverse inferences in selecting that rate. See KYD I , 607 F.3d at 762 (citing 19 U.S.C. § 1677e(b)), 768. In short,8 nothing in the instant decision precludes Comm erce from ultimately instructing Customs to liquidate these entries at some TAFA rate. The remaining question in this case is whether the particular rate that Commerce selected for these entries—122.88 percent—is supported by substantial evidence and otherwise in accordance with law. It is not. In particular, Commerce did not sufficiently corroborate this rate with respect to entries imported by K YD from either Master Packaging, see infra Part IV.D.1, or King Pac, see infra Part IV.D.2. Moreover, substantial evidence on the record—including, inter alia , the information submitted by KYD—does not s upport application of a 122.88 percent rate to the entries at issue. See infra Part IV.E. The court’s analysis proceeds in five parts. The statute governing administrative reviews focuses on individual entries, see infraPart IV.A, and Commerce’s inte rpretation of that statute is not well reasoned, see infra Part IV.B. Although Commerce may base its determinations on an antidumping duty rate that it selects, see infra Part IV.C, the rate actually selected was improperly corroborated, see infra Part IV.D, and is not suppor ted by substantial evidence, see infraPart IV.E.

A The Statute Governing Administrative Reviews Focuses On Individual Entries “Unlike the systems of some other countries, the United Stat es uses a ‘retrospective’ assessment system under which final liability for antidumping and countervailing duties is determined after merchandise is imported. Gene rally, the amount of duties to be assessed is determined in a review of the order covering a discrete period of time.” 19 C.F.R. § 351.212(a); see also SKF USA, Inc. v. United States , 537 F.3d 1373, 1381 (Fed. Cir. 2008); Statement of9 Administrative Action accompanying the Urugua y Round Agreements Act, H.R. Doc. No. 103- 316 (1994) (“SAA”) at 815, reprinted in 1994 U.S.C.C.A.N. 4040, 4157. 2 The statute governing an administrative revi ew of an antidumping duty order requires Commerce to “determine—(i) the normal value a nd export price (or constr ucted export price) of each entry of the subject merchandise, and (ii) the dumping margin for each such entry .” 19 U.S.C. § 1675(a)(2)(A) (e mphasis added); see also Consol. Bearings Co. v. United States , 348 F.3d 997, 1005 (Fed. Cir. 2003); KYD II , 704 F. Supp. 2d at 1329. 3 “The term ‘dumping margin’ means the amount by which the normal value exceeds the export price or constructed export price of the subject merchandise.” 19 U. S.C. § 1677(35)(A) (emphasis added); see KYD II , 704 F. Supp. 2d at 1326 n.5; infra note 8. 4 To calculate these dumping margins, Commerce uses sales as a proxy for entries. See Koyo Seiko Co. v. United States , 258 F.3d 1340, 1342-43 (Fed. Cir. 2001). 5 The resulting determination “s hall be the basis for the asse ssment of . . . antidumping duties on entries of merchandise covered by the determination and for deposits of estimated

2 The Uruguay Round Agreements Act (“URAA”) approved the new World Trade Organization Agreement, and the agreements annexed thereto, “resulting from the Uruguay Round of multilateral trade negotiations [conducted] under the auspices of the General Agreement on Tariffs and Trade.” 19 U.S.C. § 3511(a)(1). The SAA, which was submitted to and approved by Congress, see 19 U.S.C. § 3511(a)(2), is “an authoritative expression by the United States concerning the interpretation and appli cation of the Uruguay Round Agreements and [the Uruguay Round Agreements] Act in any judicial proceeding in which a question arises concerning such interpretation or application.” 19 U.S.C. § 3512(d).
3 Commerce “may . . . use averaging and statistically valid samples, if there is a significant volume of sales of the subject merchandise or a significant number or types of products.” 19 U.S.C. § 1677f-1; see KYD II , 704 F. Supp. 2d. at 1329, 1333-34. In addition, “the preferre d methodology in reviews [is] to compare average [normal values] to individual export prices.” SAA at 843, 1994 U.S.C.C.A.N. at 4178.
4 The corresponding pre-URAA provision likewise di rected Commerce to “det ermine—(A) the foreign market value and United States price of each entry of merchandise subject to the antidumping duty order and included within that determination, and (B) the amount, if any, by which the foreign market value of each such entry exceeds the United States pr ice of the entry. ” 19 U.S.C. § 16 75(a)(2) (1990).
5 Although the correspondence between sales and entries during a period of review may be imperfect, particularly in the case of constructed export price sales be tween an exporter and its affiliated importer, the Federal Circuit has upheld this practice as a reasonable interpretation of 19 U.S.C. § 1675. See Koyo , 258 F.3d at 1342-43.10 duties.” 19 U.S.C. § 1675(a)(2)(C). In this sense, an administra tive review serves two distinct functions, one retrospective and the other prospective. 6 The retrospective function of such a review is to determine the actual antidumping duty to be assessed on each entry of subject merchandi se imported during the period of review from each exporter or producer (collectively “expor ter”) examined in the review. Although Commerce historically prepared a “master list” th at specified this duty for each individual entry, it now calculates a single assessment rate for each unaffiliated importer of entries covered by the review. See Antidumping Duties; Countervaili ng Duties, 62 Fed. Reg. 27,296, 27,314-15 (May 19, 1997); Antidumping Duties; Countervaili ng Duties, 61 Fed. Reg. 7,308, 7,316-17 (February 27, 1996). 7 The rate may be either a percentage or a per-unit amount. E.g. , Ball Bearings and Parts Thereof From France, Germany, Italy, Ja pan, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews, Fina l Results of Changed-Circumstances Review, and Revocation of an Order in Part , 75 Fed. Reg. 53,661, 53,663 (September 1, 2010). Commerce calculates a percentage by “divid[ing] the total dumping margins for the reviewed sales by the total entered value of those reviewed sales for each importer” and calculates a per-

6 19 U.S.C. § 1675(a) also provides for reviews for exporters and producers that did not export subject merchandise during the period of investigation. See 19 U.S.C. § 1675(a)(2)(B). Although this provision governing these new shipper reviews only dir ects Commerce to determine a “weight ed average dumping margin,” id. , Congress intended these reviews to be retr ospective as well as prospective, see SAA at 875, 1994 U.S.C.C.A.N. at 4203. Consistent with this intent, Commerce generally c onducts these reviews like it conducts annual reviews. See 19 C.F.R. §§ 351.212(b)(1) (referencing 19 C.F.R. § 351.2 14); 19 C.F.R. § 351.214(h) (referencing 19 C.F.R. § 351.221). Regardless, the administrative review at issue in this matter is an annual review rather than a new shipper review. See supraPart II; KYD II , 704 F. Supp. 2d at 1334.
7 Commerce alternates between characterizing these ra tes as specific to each importer and specific to each importer/exporter pair. See, e.g. , 75 Fed. Reg. at 53,663; Final Results, 74 Fed. Reg. at 2,512; 19 C.F.R. § 351.212(b)(1). This raises the question of whether Co mmerce calculates more than on e rate for an importer that purchases subject merchandise from more than one examined exporter. Regardless, the duties assessed to such animporter would appear to be the same under both approaches, and this opinion therefore uses the term “importerspecific” to refer to either approach. When calculating su ch rates, Commerce aggregates importers that are affiliated both with each other and with a single exporter “to pr event [these] affiliates from manipulating individual assessment rates to their advantage.” Issues and Decisi on Memorandum appended to Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews, Final Results of Changed-Circumstances Review, and Revocation of an Order in Part, 75 Fed. Reg. 53,661 (September 1, 2010), cmt. 7.11 unit amount by “divid[ing] the total dumping ma rgins . . . for each exporter’s importer or customer by the total number of units the expor ter sold to that importer or customer.” E.g. , id. ; see also Final Results, 74 Fed. Reg. at 2,512; 19 C.F.R. § 351.212(b)(1); Koyo , 258 F.3d at 1342- 43. Because importers are responsible for the antidumping duties imposed on their entries, see 19 U.S.C. § 1673g(b)(4), the entry- specific and importer-specific me thods result in equivalent liabilities for each importer to the extent that reviewed entries correspond to reviewed sales. Commerce includes these assessment rates in its liqui dation instructions to Customs but not in its published results. E.g. , 75 Fed. Reg. at 53,663; Final Re sults, 74 Fed. Reg. at 2,512. In contrast, the prospective f unction of a review is to dete rmine the cash deposit to be collected on each future entry of subject merchandise imported from each exporter examined in that review. This estimated duty is equal to the “weighted average dumping margin,” e.g. , 75 Fed. Reg. at 53,663; Final Results, 74 Fed. Reg. at 2,512, which is calculated “by dividing the aggregate dumping margins determined for a sp ecific exporter or pr oducer by the aggregate export prices and constructed export prices of such exporter or producer,” 19 U.S.C. § 1677(35)(B). See Koyo , 258 F.3d at 1342-43. 8 Commerce includes these weighted average dumping margins in its instructions to Cust oms as well as in its published results. E.g. , 75 Fed. Reg. at 53,663; Final Results, 74 Fed. Reg. at 2,512. The table below summarizes the key differen ces between these two functions of an administrative review of an antidumping duty order.

8 Critically, the term “dumping margin” is statutorily distinct from the term “weighted average dumping margin.” Compare 19 U.S.C. § 1677(35)(A) with 19 U.S.C. § 1677(35)(B); see also KYD II , 704 F. Supp. 2d at 1332. At oral argument, the court asked each of the parties to define “dumping rate,” “dumping margin,” “weighted average dumping margin,” “estimated weighted average dumping margin,” “assessment rate,” and “cash deposit rate.” February 9, 2011 Oral Argument at 10:55:05-11:04:50. Each party distinguished between “dumping margin” and “weighted average dumping margin.” Id. The parties also agreed that there is “a difference between an amount and a percentage.” Id. at 11:05:04-11:08:41 (discussing KYD II , 704 F. Supp. 2d at 1326 n.5).12 Actual Antidumping Duty Estimated Antidumping Duty Application Assessment of Duties Collection of Cash Deposits Orientation Retrospective (Past Entries) Prospective (Future Entries) Specificity Importer (or Importer/Exporter) Exporter

Formula ݃݅݊ݎܽܯ ݅݊݃݌݉ݑܦ ݎ݁ݐݎ݋݌݉ܫ ݄ܽܿܧ ݎ݋݂ ݁ݑܸ݈ܽ ݁݀ݎ݁ݐ݊ܧ ݎ݁ݐݎ݋݌݉ܫ ݄ܽܿܧ ݎ݋݂

or ݃݅݊ݎܽܯ ݅݊݃݌݉ݑܦ ݎ݁ݐݎ݋݌݉ܫ ݄ܽܿܧ ݎ݋݂

ݏݐܷ݊݅ ݂݋ ݎܾ݉݁ݑܰ ݂ ݎ݁ݐݎ݋݌݉ܫ ݄ܽܿܧ ݎ݋ ݃݅݊ݎܽܯ ݅݊݃݌݉ݑܦ ݎ݁ݐݎ݋݌ݔܧ ݄ܽܿܧ ݎ݋݂

ܽ݊݀ ݅ܿ݁ݎܲ ݐݎ݋݌ݔܧ ݅ܿ݁ݎܲ ݐݎ݋݌ݔܧ ݁݀ݐܿݑݎݐݏ݊݋ܥ ݎ݁ݐݎ݋݌ݔܧ ݄ܽܿܧ ݎ݋݂

Published in Final Results No Yes Included in Instructions to Customs Yes Yes

In short, Commerce determines estimated duties based on dumping margins calculated for exporters and determines actual duties ba sed on dumping margins calculated for importers. See, e.g. , Koyo , 258 F.3d at 1342-43. This is because “an exporter/producer may have dumped at different rates to different unaffiliated im porters.” Department of Commerce, Antidumping Manual (October 13, 2009), Chap. 6. In making these determinations, Commerce sometimes faces information that is incomplete or unreliable. “[I]f an interested party withholds or fails to provide requested information, Commerce shall ‘use the facts othe rwise available in reaching the applicable determination.’” KYD I , 607 F.3d at 762 (quoting 19 U.S.C. § 1677e(a)(2)). “In the case of an uncooperative respondent, Commerce ‘may use an infe rence that is adverse to the interests of that party in selecting from among th e facts otherwise available.’” Id. (quoting 19 U.S.C.13 § 1677e(b)). However, “when Commerce ‘relies on secondary information rather than on information obtained in the course of’ the ad ministrative review, it ‘shall, to the extent practicable, corroborate that info rmation from independent sources that are reasonably at [its] disposal.’” KYD II , 704 F. Supp. 2d at 1330 (quoting 19 U.S.C. § 1677e(c)). It is significant that these three provisions of 19 U.S.C. § 1677e facilitate rather than supersede the actual and estimat ed antidumping duty determina tions required under 19 U.S.C. § 1675(a). See 19 U.S.C. § 1677e(a)(2) (“. . . in reaching the applicable determination . . .”);
KYD II , 704 F. Supp. 2d at 1333 (discussing Valley Fresh Seafood, Inc. v. United States , 31 CIT 1989, 1997-98 (2007)); cf. F.lli De Cecco di Filippo Fara S. Martino S.p.A. v. United States , 216 F.3d 1027, 1032 (Fed. Cir. 2000) (“[T]he purpose of [19 U.S.C. § 1677e(b)] is to provide respondents with an incentive to cooperate, not to impose punitive, aberrational, or uncorroborated margins.”); Rhone Poulenc, Inc. v. United States , 899 F.2d 1185, 1190 (Fed. Cir. 1990) (“[T]he basic purpose of the [antidumping] statute [is] determining current margins as accurately as possible.”). 9 Even if a party is uncooperati ve, Commerce is still constrained by “commercial reality.” Gallant , 602 F.3d at 1323. The instant action challenge s only Commerce’s selection and corroboration of the 122.88 percent actual antidumping duty rate for the entries at issue. See KYD II , 704 F. Supp. 2d at 1334 n.17; KYD’s Memorandum in Support of Motion for Judgment on the Agency Record (Doc. No. 42) (“KYD’s Memo”) at 12; Plaintiff’s Reply [i n support of its motion for summary judgment] (Doc. No. 50) at 7; February 9, 2011 Oral Argument at 11:54:57-11:55:16 (“We’re not challenging the prospective rate. That’s really not an issue here. We’re looking solely on the retrospective. . . . We don’t care about the cash deposit rate. . . . We’re only challenging the duty

9 Rhone ’s reasoning has outlasted the statute that it addressed. See KYD II , 704 F. Supp. 2d at 1330 n.8; infra Part IV.D.14 assessment rate. . . .”). Accordingly, the c ourt need not review Co mmerce’s selection and corroboration of the 122.88 percent rate for any en tries not imported by KYD or for any future entries whatsoever. The entries actually at issue comprise all of KYD’s imports of the subject merchandise from King Pac and Master Packagin g during the period of review. See Summons (Doc. No. 1); February 18, 2009 Order (Doc. No. 26). Unlike in the previous administrative review, KYD provided information about these entries. See KYD II , 704 F. Supp. 2d at 1331 n.10. This information, while incomplete, nonetheless faci litates the determina tions required under 19 U.S.C. § 1675(a). In combination with other record evidence, it permits Commerce to more closely assess whether a rate of 122.88 percent describes with reasonable accuracy the dumping behavior of each of King Pac and Master Pack aging toward KYD, “albeit with some built-in increase intended as a deterrent to non-compliance.” Gallant , 602 F.3d at 1323 (quoting and emphasizing De Cecco , 216 F.3d at 1032); see infra Parts IV.D-E. This conclusion is narrow. It does not appl y if an importer provides no information. See
KYD I , 607 F.3d at 767. Nor does it apply if an interest ed party supplies only some of its data in a potentially selective manner. See Steel Auth. of India, Ltd. v. United States , 25 CIT 482, 487, 149 F. Supp. 2d 921 (2001) (“SAIL ”). KYD, however, stated th at it submitted all relevant information in its possession regarding th e universe of pertinent transactions, see Redetermination at 19, and the record shows th at Commerce has not asked for more, see, e.g. , id. at 1-10, 19-21. Accordingly, an examination of th e record with respect to the entries at issue gives effect to the Federal Circuit’s i nvitation to importers to “produce[] current information showing the margin to be less,” KYD I , 607 F.3d at 766-67 (quoting Rhone , 899 F.2d at 1190);15 see infra Part IV.D.2, and, ultimately, to the statutor y structure for an admi nistrative review, see 19 U.S.C. § 1675(a).

B Commerce’s Interpretation Of 19 U.S. C. § 1675(a) Is Not Well Reasoned In its Redetermination, Commerce “find[s] that the statute does not requ ire us to calculate an importer-specific dumping margin because the statute states explicitly that dumping margins are calculated for producers and exporters.” Redete rmination at 15. Commerce is correct that 19 U.S.C. § 1675(a) does not require the calculation of importer-specifi c dumping margins. Instead, this provision requires the determination of entry-specific dumping margins. See 19 U.S.C. § 1675(a); see generally supra Part IV.A. As the Federal Circuit explained: Section 1675 sets forth the framewor k for an administ rative review of antidumping duties. This section clearly places the focus of the administrative review on the entry of merchandise. For exampl e, section 1675( a)(2)(A) requires Commerce to “determine . . . the normal value and export price (or constructed export price) of each entry of subject merchandise, and . . . the dumping margin for each such entry .” 19 U.S.C. § 1675(a)(2 )(A) (emphases added). Consol. Bearings Co. v. United States , 348 F.3d 997, 1004-05 (Fed. Cir. 2003). Commerce, not Congress or this court, decided to determine im porter-specific dumping ma rgins as an alternate method for correctly attributing the antidumping du ties that would result from determining entryspecific dumping margins. See 19 C.F.R. § 351.212(b)(1); 62 Fed. Reg. at 27,314-15 (justifying Commerce’s prior shift from an entry-specifi c assessment method to an importer-specific assessment method); 61 Fed. Reg. at 7,316-17 (“To th e extent possible, these assessment rates will be specific to each importer, because the am ount of duties assessed should correspond to the degree of dumping reflected in th e price paid by each importer.”).16 Accordingly, where Commerce has the necessary information to distinguish among unaffiliated importers, it is required by 19 U.S.C. § 1675(a) to do so. As the Federal Circuit observed: [A]ntidumping duties ensure that each im port reflects correct market values. Once the review sets the market value of the merchandise, the focus shifts to importation of the merchandise, not the ch aracter of the merchandise itself. Accordingly, importers of the same merc handise can have different antidumping duties, just as the final results in this case established vari ous importer-specific rates for those who participated in the re view. The character of the merchandise does not control the assessment of duties, but the market fo rces in play at the time of each separate import transaction. The si mple fact that one importer imports the same merchandise as another importer does not necessarily lead to the conclusion that they are subject to the same antidum ping duties. Because sales prices vary from exporter to exporter and from time to time, separate entries of the same good may have different duties. Consol. Bearings , 348 F.3d at 1005. Moreover, in originally remanding the instant matter, this court al ready considered and rejected Commerce’s position as “at odds with the plain meaning of 19 U.S.C. § 1675(a)(2)(A).”
KYD II , 704 F. Supp. 2d at 1332. As the court stated, Commerce “is directed by Congress to determine the normal value and export price of—and the dumping margin for—‘each entry of the subject merchandise.’” Id. (quoting and emphasizing 19 U.S.C. § 1675(a)(2)(A)). Because “the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to th e unambiguously expressed intent of Congress.” Wheatland Tube , 495 F.3d at 1359 (quoting Chevron , 467 U.S. at 842-43); see supra Part III. Although Commerce’s interpretation of antidumping dut y law is entitled to great respect, see De Cecco , 216 F.3d at 1032, Congress’s unambiguous statemen t of that law is entitled to even more deference, see Wheatland Tube , 495 F.3d at 1359. Nonetheless, because of Commerce’s special role in administering antidumping duty law,

see De Cecco , 216 F.3d at 1032, further discussion of its arguments is appropriate. Commerce17 relies primarily on two statutory provisi ons (19 U.S.C. § 1673d(c)(1) and 19 U.S.C. § 1673g(b)(4)), see infra Parts IV.B.1-2, and on its reading of the Federal Circuit’s decision in
KYD I , 607 F.3d at 768, see infra Part IV.B.3. As discussed below, the court finds these arguments unpersuasive.

1 19 U.S.C. § 1673d Does Not Govern The Calc ulation Of Actual Antidumping Duties In An Administrative Review Commerce argues that “the stat ute” compels a conclusion contra ry to that reached by this court in KYD II , 704 F. Supp. 2d at 1329: As the Department explained in the Final Results and as the Department argued in its brief to the Court, the antidumping duty statute does not require, or even contemplate, the Department calculating separate dumping ma rgins for individual importers. [19 U.S.C. § 1673d(c)(1)(B)(i)(I) and (III)] specifically direct that the Department shall “determine the estimate d weighted average dumping margin for each exporter and producer individually investigated” and “order the posting of a cash deposit, bond or other security” “bas ed on the estimated weighted average dumping margin . . .” (emphasis added). Redetermination at 3-4, 15. Commerce’s citation of 19 U.S.C. § 1673d is unpersuasive for three reasons. First, Commerce erroneously conflates an tidumping duty investigations and administrative reviews. 19 U.S.C. § 1673d governs investigations rather than reviews. See 19 U.S.C. § 1673d. Whereas investigations determine only estimated duties, reviews dete rmine both estimated duties and18 actual duties. Compare 19 U.S.C. §§ 1673b, 1673d with 19 U.S.C. § 1675(a). 10 As Commerce’s own Antidumping Manual states: In an investigation, we calculate a singl e weighted-average dumping margin for an exporter/producer which will be us ed for bonding or cash deposit purposesuntil there is an administrative review. For an administrative review, a weightedaverage margin is also established for each producer/exporter, and an assessment rate is established for each U.S. import er because an exporter/producer may have dumped at different rates to different unaffiliated importers. Department of Commerce, Antidumpi ng Manual (October 13, 2009), Chap. 6. Second, Commerce erroneously conflates estim ated duties and actua l duties. Although estimated duties are based on dump ing margins calculated for expor ters, actual duties are based on dumping margins calculated for importers. See, e.g. , Koyo , 258 F.3d at 1342-43. As the Federal Circuit explained: Commerce has adopted two different calculational approaches—one for cash deposits and one for final duties. Comme rce requires importers to make cash deposits in an amount based, in pertinent pa rt, on the “estimated weighted average dumping margin” for the merchandise. 19 U.S.C. § 1673b(d)(1)(B). Commerce calculates this “estimated weighted average dumping margin,” i.e. , estimated duty, by “dividing the aggregate dumpi ng margins determined for a specific exporter or producer. . . by the aggregate export prices or constructed export prices of such exporter or producer.” 19 U.S.C. § 1677(35)(B). . . . This rate is then applied to estimated imports. . . . Commerce has devised a different met hodology for use in calculating the final amount of the duties to be imposed on merchandise already imported into the United States. When an antidumping duty is imposed upon imported merchandise, Commerce calculates an assessment rate for each importer by

10 In an investigation that produces an affirmat ive determination of dump ing, Commerce “shall—(i) determine an estimated weighted average dumping margin for each exporter and producer individually investigated, and (ii) determine, in accordance with [19 USC § 1673d(c)( 5)], an estimated all-others rate for all exporters and producers not individually investigated” and “shall order the posting of a cash deposit, bond, or other security, as [Commerce] deems appropriate, for each entry of the subject merchandise in an amount based on the estimated weighted average dumping margin or the estimated all-others rate, whichever is applicable.” 19 U.S.C. § 1673b(d)(1); see also 19 U.S.C. § 1673d(c)(1)(B). In an administ rative review, however, Commerce shall “review, and determine . . . , the amount of any antidumping duty” by “determin[ing]—(i) the normal value and export price (or constructed export price) of each en try of the subject merchandise, and ( ii) the dumping margin for each such entry” and “shall publish in the Federal Register the results of such review, together with notice of any duty to be assessed [or] estimated duty to be deposited.” 19 U.S.C. § 1675(a)(1)-(2). The existing cash deposit rate becomes the assessment rate only if no party requests an administrative review. 19 C.F.R. § 351.212(c).19 dividing the dumping margin for the subjec t merchandise . . . by the entered value of such merchandise for normal Customs purposes. This methodology has been codified in [19 C.F.R. § 351.212(b)(1)]. . . . That rate is then applied to the merchandise imported . . . during [the] review period. Koyo , 258 F.3d at 1342-43 (internal citations omitted) (emphasis added); see also id. at 1343 n.4 (defining “the importer-specific assessment rate” as a function of normal value, U.S. price, and entered value). Third, Commerce erroneously conflates dumpi ng margins and weighted average dumping margins. A dumping margin is “the amount by which the normal value exceeds the export price or constructed export price of the subject me rchandise.” 19 U.S.C. § 1677(35)(A) (emphasis added). In contrast, a “weighted av erage dumping margin” is a percentage based in part on the dumping margin calculated for an exporter. 19 U.S.C. § 1677(35)(B). That weighted average dumping margin becomes the cash deposit rate used to collect estimated duties on future entries. See, e.g. , 75 Fed. Reg. at 53,663. It does not necessarily become the assessment rate used to collect actual duties on reviewed entries. See 19 U.S.C. § 1675(a). In short, Commerce’s argument relies sole ly on a statutory provi sion that implicates investigations rather than reviews, estimated duties rather than actual duties, and weighted average dumping margins rather than dumping margins alone. See 19 U.S.C. § 1673d. That argument is not persuasive.

2 19 U.S.C. § 1673g(b)(4) Governs Payment, Not Determination, Of Duties Commerce repeatedly notes that 19 U.S.C. § 1673g(b)(4) obligates th e importer of entries that are subject to an antidumping duty order to pay the antidumping duties assessed on those entries. See Redetermination at 9 (“The CAFC . . . affi rm[ed] the ruling of the lower court that . . . under [19 U.S.C. § 1673g(b)(4)] importers have the legal responsib ility to pay assessed20 duties associated with the goods they import.”), 15 (“Also, the liability for the resultant antidumping duties rests solely with the importer. See [19 U.S.C. § 1673g(b)(4)].”), 28 (“When unaffiliated importers enter into a commercial ag reement with an exporter/producer to import merchandise subject to an antidumping or count ervailing duty order, they do so with an understanding that they must pay all duties a ssessed against that exporter/producer for the subject merchandise pursuant to [19 U.S.C. § 16 73g(b)(4)].”), 30 (“Indeed, the CAFC upheld the lawfulness of the 122.88 pe rcent rate in [KYD I ] as well as KYD’s obligation to pay its allocation of the dumping duties applied to merc handise that KYD purchas ed from King Pac.”), 32 (“During the [period of review], KYD had le gal responsibilities to pay dumping liabilities assigned to King Pac and Master Pa ckaging and we do not have the statutory authority to absolve it of those responsibilities thr ough a remand redetermination.”). 19 U.S.C. § 1673g(b)(4) does refute the argum ent that “a cooperative, independent importer should not be required to pay an assess ment based on” a lawfully determined rate. KYD
I , 607 F.3d at 768; see also KYD I , 613 F. Supp. 2d at 1382 (“[I]mporters are responsible to pay the antidumping duties to which they are subject , including any increases over the deposit made upon entry for estimated antidumping duties.”); KYD II , 704 F. Supp. 2d at 1334 n.17 (“Remand in this action is limited to KYD’s entries of the subject merchandise during the [period of review]—entries which have already occurred an d for which KYD alone is required to pay duties pursuant to 19 U.S.C. § 1673g(b)(4).”). However, Commerce’s obligation to correc tly determine antidumping duties under 19 U.S.C. § 1675(a) is not diminished by an im porter’s obligation to pay those duties under 19 U.S.C. § 1673g(b)(4). KYD seeks a reasonably accurate assessment rate for its entries. See KYD’s Memo at 3 (“If a rate is to be calcu lated for KYD based on adverse inferences, the21 selected rate cannot be used as it was not pr operly corroborated and notsupported by substantial evidence and does not reflect the actual expe rience of KYD plus a reasonable amount for deterrence.”), 19-35. Commerce is stat utorily required to oblige. See 19 U.S.C. § 1675(a); supra Part IV.A; infraPart IV.D.

3 The Federal Circuit’s Holding In KYD I Does Not Preclude Remand According to Defendant, KYD’s “fundamental argument” is that “Commerce must calculate a separate antidumping duty rate for importers who participate in an administrative proceeding, even if the unrelate d exporters of the examined me rchandise receive adverse facts available, pursuant to [19 U.S.C. § 1677e(b)] .” Defendant’s Response to Plaintiff’s Comments on the Department of Commerce’s Redeterminat ion on Remand (Doc. No. 80) at 2. Commerce believes that the Federal Circuit’s decision in KYD I , 607 F.3d 760, undermines such an argument: The Court’s remand order in this case is based on the premise that KYD could receive the remedy in this case that it request ed in [KYD I ]. The CAFC has indicated clearly that this remedy is unavail able to KYD. Accordingly, even if we could use KYD’s data in our calculations (and we cannot as described above), we do not believe the results of such an analys is would be applicable in light of the CAFC’s ruling in [KYD I ]. Redetermination at 10. The court is aware of the arguments in KYD I , see KYD I , 613 F. Supp. 2d 1371 (Wallach, J.), aff’d , KYD I , 607 F.3d 760, as well as the basis for the remand order in KYD II ,

see KYD II , 704 F. Supp. 2d 1323 (Wallach, J.). Commer ce is correct that KYD is not exempt from the results of the administrative review. See supra Part IV.B.2. However, to the court, KYD’s fundamental argument appears to be th at record evidence demonstrates that the assessment rate applied to KYD’s entries is unlawfully high. See KYD II , 704 F. Supp. 2d at22 1324. The remedy sought by KYD is remand for the purpose of determining a more accurate
assessment rate. See KYD’s Comments on the Department ’s Remand Determination (“KYD’s Comments”) at 30. Commerce points to nothing in the Federal Circuit’s d ecision that forecloses this remedy. See generally Redetermination at 9-10, 27-32. 11

C Commerce May Base Each Dumping Margin De termination On A Rate That It Selects Having held that the statut e governing administrative re views focuses on individual entries, the court now turns to Commerce’s determinations in the instant matter. This matter was originally remanded so that Commerce coul d apply 19 U.S.C. § 1677m(e) to the price information submitted by KYD. KYD II , 704 F. Supp. 2d at 1331-32. KYD had argued that Commerce could use that information in combinati on with additional facts available to calculate dumping margins for the entries at issue. See id. at 1328, 1332. Commerce rejected that argument without evaluating the statutory criteria that govern the use of imperfect information submitted by an interested party. See id. at 1328, 1332 (discussing 19 U.S.C. § 1677m(e)). KYD and Commerce now advance competing cons tructions of 19 U.S.C. § 1677m(e) as it relates to 19 U.S.C. §§ 1675(a) and 1677e. Compare KYD’s Comments at 4-9 with Redetermination at 4-9. KYD appears to view export price and norma l value as relevant “determinations” under 19 U.S.C. § 1675(a). See KYD’s Comments at 4-9. On this view, for each relevant entry, Commerce must use KYD’s information pursuant to 19 U.S.C. § 1677m(e) to determine export price and use facts available pursuant to 19 U.S.C. § 1677e to determine

11 In holding that Commerce may use adverse inferences to determine assessment rates for unaffiliated importers, the Federal Circuit did state that “KYD does not point to any statute or regulation that would entitle independent importers to a different assessment rate from th e rate for importers that are affiliated with the foreign producer/exporters of the good they import.” KYD I , 607 F.3d at 768. This statement is best understood in that context as a rejection of KYD’s request for a special non-adverse assessment rate. See id. ; KYD I , 613 F. Supp. 2d at 1381-82; see also supraPart IV.A.23 normal value. From these values, Commerce could then calculate a dumping margin for each entry. 12 In contrast, Commerce appears to view dumping margin as the only relevant “determination” under 19 U.S.C. § 1675(a). See Redetermination at 4- 6. On this view, KYD’s information, standing alone, is “so incomplete th at it cannot serve as a reliable basis for the applicable determination.” 19 U.S.C. § 1677m(e )(3). Pursuant to 19 U.S.C. § 1677e, Commerce could therefore base its dumping margin determination on an antidumping duty rate that it selects rather than on individual calculati ons of normal value and export price. 13 The meaning of “determination” is not clear fr om the relevant statutes. This term could plausibly refer to the antidumping duty determinat ion that Commerce is required to make or to any of the other determinations that such a duty determination normally requires. Because 19 U.S.C. § 1677m(e) is ambiguous on this point and Commerce has now proffered a reasonable interpretation as part of its administrative pr oceeding, the court must defer to that reasonable interpretation. See supra Part III; see also SAIL , 25 CIT 482, cited in Redetermination at 5-6. 14 Substantial evidence supports Commerce’s appl ication of this interpretation to KYD’s price information. That information, on its own, permits at most a determination of the export price of KYD’s imports from King Pac and Master Packaging. See Redetermination at 7-9; KYD’s Comments at 3. Under Commerce’s reasona ble interpretation of 19 U.S.C. § 1677m(e),

12 On this view, Commerce would also be required to us e facts available to fill certain gaps in KYD’s price information. For example, Commerce might use data submitted by other respondents to make commercially reasonable assumptions about resin content, whether or not those assumptions are based on adverse inferences pursuant to 19 U.S.C. § 1677e(b). See Redetermination at 25-27.
13 Commerce also argues that it cannot use KYD’s pri ce information “without undue difficulties” and that even if the applicable determination were export price, KYD’s information remains “so incomplete that it cannot serve as a reliable basis for [that] determination.” Redetermination at 7-9. The court need not consider these arguments. 14 In SAIL , which involved the treatment of incomplete responses by an uncooperative exporter, this court deferred to Commerce’s interpretation of the term “information” in 19 U.S.C. § 1677m(e). See SAIL , 25 CIT at 482, 485-86.24 this information is “so incomplete that it ca nnot serve as a reliable basis for reaching the applicable determination”—that is, the calculation of a dumping margin for each of the entries at issue. 19 U.S.C. § 1677m(e)(3). Accordingly, Commerce is entitled to sele ct an antidumping duty rate from the facts available in order to determine these dumping margins. The que stion then becomes whether the particular rate selected by Commerce—122.88 pe rcent—is properly corr oborated and supported by substantial evidence with respect to these entries. See infraParts IV.D-E.

D Commerce Improperly Relied On The Rhone Presumption To Support The Selected Rate “[W]hen Commerce ‘relies on secondary inform ation rather than on information obtained in the course of’ the administrativ e review, it ‘shall, to the extent practicable, corroborate that information from independent sources that are reasonably at [ its] disposal.’” KYD II , 704 F. Supp. 2d at 1330 (quoting 19 U.S.C. § 1677e(c)). “C ongress intended for th is requirement to ‘prevent the petition rate (or ot her adverse inference rate), wh en unreasonable, from prevailing and to block any temptation by Commerce to overreach reality in seeking to maximize deterrence.’” Id. (quoting PAM, S.p.A. v. United States , 582 F.3d 1336, 1340 (Fed. Cir. 2009)). “In order to corroborate secondary informati on, Commerce must find th at ‘the secondary information to be used has probative value.’” KYD I , 613 F. Supp. 2d at 1378 (quoting SAA at 870, 1994 U.S.C.C.A.N. at 4199). “Commerce eval uates whether secondary information has probative value by assessing its reliability and relevance.” Id. (citing Mittal Steel Galati S.A. v. United States , 491 F. Supp. 2d 1273, 1278 (CIT 2007)); see also KYD I , 607 F.3d at 764. 15

15 The reliability and relevance analyses appear to overlap somewhat. CompareGallant , 602 F.3d at 1323- 24 with KYD I , 607 F.3d at 766-67.25 In some circumstances, “Commerce is permitted to use a ‘common sense inference that the highest prior margin is the most probative ev idence of current margins because, if it were not so, the importer, knowing of the rule, would have produced currentinformation showing the margin to be less.’” KYD I , 607 F.3d at 766-67 (quoting Rhone , 899 F.2d at 1190 and citing Ta Chen Stainless Steel Pipe, Inc. v. United States , 298 F.3d 1330, 1339 (Fed. Cir. 2002)). 16 The relationship between this “presumption,” id. at 767, and 19 U.S.C. § 1677e(c) is not entirely clear. Rhone actually predates the enactment of 19 U.S.C. § 1677e(c). See KYD II , 704 F. Supp. 2d at 1329-30 (discussing the “best in formation available” standard); see also Tianjin Mach. Import & Export Corp. v. United States , Slip Op. 11-1 at 24-26 (CIT January 4, 2011); Fujian Lianfu Forestry Co. v. United States , 638 F. Supp. 2d 1325, 1336-37 (CIT 2009); Gerber Food (Yunnan) Co. v. United States , 31 CIT 921, 947-48, 491 F. Supp. 2d 1326 (2007). Its presumption “does not appear in the statute or regulations, but is a product of agency decision making.” KYD I , 607 F.3d at 769 (Dyk, J., concurring in part and dissenting in part) (citing Ta Chen , 298 F.3d at 1339). The Federal Circuit appears to have held that Commerce can use this presumption to establish the relevance of a rate for the purpo se of corroboration. See KYD I , 607 F.3d at 764, 766. This Rhone presumption of relevance is nonethele ss subject to at least two significant conditions. First, it is limited to previously examined exporters. See infra Part IV.D.1. Second, it is rebuttable. See infra Part IV.D.2. Because of these conditions, the Rhone presumption does not fully apply to KYD’s imports fromKing Pac and Master Packaging. See infra Parts IV.D.1-2.

16 Commerce states that Rhone “does not apply” because the importer in that case was affiliated with the exporter. Redetermination at 16. The Federal Circuit believes that Rhone applies. See KYD I , 607 F.3d at 766 (quoting Rhone , 899 F.2d at 1190). So does this court. See KYD II , 704 F. Supp. 2d at 1329-30 (quoting Rhone , 899 F.2d at 1190, 1191). So too does Commerce. See Preliminary Results, 73 Fed. Reg. at 52,290 (citing Rhone , 899 F.2d at 1190). Ta Chen endorses but does not actually apply the Rhone presumption. See Ta Chen , 298 F.3d at 1339 (citing Rhone , 899 F.2d at 1190); Ta Chen Stainl ess Steel Pipe, Inc. v. United States , 24 CIT 841, 846 (2000) (explaining that the selected rate was calculated from certain sales made by the exporter during the pertinent period of review).26 Absent this presumption, substantial evidence do es not support Commerce’s determination that the 122.88 percent rate is rele vant to these imports. See infra Part IV.E. 17

1 Commerce Improperly Applied The Rhone Presumption To KYD’s Imports From Master Packaging
The Rhone presumption is limited to exporters that were examined by Commerce in a previous investigation or administrative review. As the Federal Circuit explained, this limitation distinguishes KYD I from Gallant , 602 F.3d 1319. In Gallant , “Commerce had not previously determined an antidumping duty against the export er in question, and thus there was no occasion for the court to consider the presumption that an exporter’s prior margin continues to be valid if the exporter fails to cooperate in a subsequent proceeding.” KYD I , 607 F.3d at 767; see also Gallant , 602 F.3d at 1324. This “presumption applie[d] in [KYD I ].” KYD I , 607 F.3d at 767. In the original antidumping duty investigation, Commerce applied a TAFA rate of 122.88 percent to an exporter called Zippac. See Universal Polybag Co. v. United States , 577 F. Supp. 2d 1284, 1300 n.14 (CIT 2008) (Wallach, J.). In the first administrative review, Commerce formally collapsed Zippac and King Pac pursuant to 19 C.F.R. § 351.401(f) and applied that same rate to the collapsed entity.
See id. at 1288, 1300 n.4. In the second administra tive review, Commerce continued to apply that rate to King Pac. See KYD I , 613 F. Supp. 2d at 1375. The Federal Circuit agreed that these determinations were within Commerce’s discretion. See KYD I , 607 F.3d at 766-67. In the third administrative review, however , Commerce applied the TAFA rate of 122.88 percent to Master Packaging as well as to King Pac. See KYD II , 704 F. Supp. 2d at 1327;

17 This conclusion is not a reflection on Commerce, as the courts have also struggled with the corroboration requirement. See infra Part IV.E.27 Redetermination at 32. Although KYD “provided evidence that King Pac ‘has apparently arranged for all of its U.S. export business to be supplied by’ . . . Master Packaging,” Redetermination at 1, the record contains no evidence that Commerce collapsed these two exporters pursuant to 19 C.F.R. § 351.401(f). Rather, Commerce continued to treat them as separate entities. See Polyethylene Retail Carrier Bags from Thailand: Preliminary Results of Antidumping Duty Administrative Review and Intent to Rescind in Part, 73 Fed. Reg. 52,288, 52,289-90 (September 9, 2008) (“Preliminary Results ”); Final Results, 74 Fed. Reg. at 2,512; Redetermination at 1-32. Indeed, Commerce explained that it sele cted Master Packaging as an additional mandatory respondent because “Master P ackaging is the only respondent not selected for individual examination originally and unfor eseen developments in other proceedings have freed up additional resources within AD/CVD Enforcement Office 5.” Polyethylene Retail Carrier Bags from Thailand: Selection of Mast er Packaging as a Mandatory Respondent, U.S. Department of Commerce (March 27, 2008), Pub lic Record (“P.R.”) 79 (“Master Packaging Selection Memo”) at 3; see also Preliminary Results, 73 Fed. Reg. at 52,289; KYD II , 704 F. Supp. 2d at 1325-26; supranote 1. Because Commerce did not previously examine Master Packaging, it cannot simply apply the Rhone presumption to KYD’s entries from this e xporter. Instead, Commerce must establish the relevance of any secondary information on wh ich it relies through “‘i ndependent sources that are reasonably at [its] disposal ’” and otherwise ensure that such information “has some grounding in commercial reality.” Gallant , 602 F.3d at 1324 (quoting 19 U.S.C. § 1677e(c)); see also Qingdao Taifa Group Co. v. United States , Slip Op. 10-126, 2010 Ct. Intl. Trade LEXIS 131 at *5 n.1 (CIT November 12, 2010); Tianjin Mach. , Slip Op. 11-1 at 27-28, 36-37.28 2 Commerce Improperly Applied The Rhone Presumption To KYD’s Imports From King Pac An importer can rebut the Rhone presumption by “produc[ing] currentinformation showing the margin to be less.” KYD I , 607 F.3d at 766 (quoting Rhone , 899 F.2d at 1190). “‘[S]ince the presumption is rebuttable, it ’ induces cooperation with Commerce ‘without sacrificing the basic purpose of the statute: determining current margins as accurately as possible.’” KYD II , 704 F. Supp. 2d at 1330 (quoting Rhone , 899 F.2d at 1191). Commerce’s presumption “was not rebutted” in the second administrative review. KYD I , 607 F.3d at 767. “KYD offered no evidence regardi ng King Pac’s activities during the period of review for the second administrative review that would rebut that presumption. For that reason, Commerce correctly determined that the AFA ra te remained relevant to King Pac.” Id. No further demonstration of relevance was required. Id. at 766-67; see also id. at 769 (Dyk, J., concurring in part and dissenting in part) (disagreeing that the Rhone “presumption can be applied without corroborating da ta for the period of the seco nd administrative review”). In the third administrative review, however, KYD “produced currentinformation” regarding its purchases from King Pac and Master Packaging, KYD I , 607 F.3d at 766 (quoting Rhone , 899 F.2d at 1190). See KYD II , 704 F. Supp. 2d at 1325-26 (describing KYD’s participation in the administrative review), 1331 n.10 (distinguishing KYD I from KYD II on this basis). Commerce reasonabl y concluded that 19 U.S.C. § 1677 m(e) did not require use of KYD’s price information to determine th e export price of each entry. See supra Part IV.C. Nonetheless, that conclusion does not necessarily permit Commerce to wholly disregard this information when corroborating a TAFA rate.29 At a minimum, provision of this informa tion obliges Commerce to engage in a more robust evaluation of the 122.88 percent rate as a pplied to KYD’s entries from King Pac. When relying on “secondary information,” Commerce “shall, to the extent practicable, co rroborate that information from independent sources that are reasonably at [ its] disposal.” KYD II , 704 F. Supp. 2d at 1330 (quoting 19 U.S.C. § 1677e(c)); see also Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews, 70 Fed. Reg. 54,711 (September 16, 2005) (“With respect to the relevance aspect of corrobor ation, [Commerce] will consider information reasonably at its disposal as to whether there are circumstances that would render a margin not relevant.”), cited in KYD I , 613 F. Supp. 2d at 1378. In the second administrative review, pertinent information for King Pac was not available, much less reasonably so. See KYD I , 607 F.3d at 767. In the third administrative revi ew, however, KYD provided what it contends, and Commerce does not dispute, to be all per tinent information in its possession. See Redetermination at 2; KYD’s Comments at 6, 9. KYD’s information suggests that a lower an tidumping duty rate would more accurately reflect dumping margins for KYD’s imports from King Pac. See infra Part IV.E. “Commerce’s burden is greater where information on the record demonstrates that an alternative rate may be appropriate.” Shanghai Taoen Int’l Trading Co. v. United States , 29 CIT 189, 198, 360 F. Supp. 2d 1339 (2005) (citations omitted). In light of this information, the Rhone presumption is no longer a “common sense inference,” KYD I , 607 F.3d at 766 (quoting Rhone , 899 F.2d at 1190), that sufficiently establishes the relevance of the 122.88 percent rate to these entries.30 E Substantial Evidence Does Not Support A Rate of 122.88 Percent For The Entries At Issue Commerce’s “broad discretion in making an tidumping duty determinations . . . is particularly great in the case of uncooperative respondents.” Gallant , 602 F.3d at 1323 (citing De
Cecco , 216 F.3d at 1032); see also KYD I , 607 F.3d at 765 (citing PAM , 582 F.3d at 1340). That discretion, “however, is not unbounded.” Gallant , 602 F.3d at 1323 (citing De Cecco , 216 F.3d at 1032). “The burden imposed by substantial eviden ce review may not be heavy, but it is not ephemeral. There must be at least enough evid ence to allow reasonable minds to differ.” PAM , 582 F.3d at 1340 (citations omitted). “An AFA rate must be ‘a reasonably accurate estimate of the respondent’s actual rate, albeit with some built-in increase intended as a deterrent to noncompliance.’” Gallant , 602 F.3d at 1323 (quoting and emphasizing De Cecco , 216 F.3d at 1032). “Congress tempered deterrent value with the corroboration requirement. It coul d only have done so to prevent the petition rate (or other adverse inference rate), when unr easonable, from prevailing and to block any temptation by Commerce to overreach reality in seeking to maximize deterrence.” PAM , 582 F.3d at 1340 (quoting De Cecco , 216 F.3d at 1032). Binding precedent permits Commerce’s determ ination that the antidumping duty rate applied to the entries at issue is reliable . KYD argues that this TAFA rate of 122.88 percent is unreliable in light of post-inves tigation rates of 2.26 to 5.35 per cent and post-review rates of 8.94 to 32.67 percent. See KYD’s Memo at 23-31. 18 This argument closely tracks the Federal Circuit’s holding that a TAFA rate of 57.64 percen t was unreliable in light of post-investigation rates of 5.91 to 6.82 percen t and post-review rates of 2.58 to 10.75 percent. See Gallant , 602 F.3d

18 The 8.94 and 32.67 percent rates are the result of the third administrative review. The second administrative review produced rates of 0.80 to 1.87 percent. See KYD I , 607 F.3d at 770 (Dyk, J., concurring in part and dissenting in part).31 at 1323-24. Nonetheless, because “[t]he reliability of an AFA rate is assessed by determining whether the rate was reliabl e when first used,” KYD I , 613 F. Supp. 2d at 1379 (citing Tianjin Mach. Imp. & Exp. Corp. v. United States , 31 CIT 1416, 1434 (2007)), the court is bound by the Federal Circuit’s subsequent holdi ng that “Commerce had a sufficient basis for concluding that” this specific rate was reliable when assigni ng it “in the first admini strative review,” KYD I , 607 F.3d at 766. However, in the absence of the Rhone presumption, see supraPart IV.D, substantial evidence does not support—and i ndeed undermines—the relevance of this rate to the imports at issue. In other proceedings, Commerce has sought to establish the relevanc e of its selected AFA rate by identifying individual tran sactions with dumping rates at or above that AFA rate. See,
e.g. , PAM , 582 F.3d at 1340 (sales by PAM in the previous period of review); Ta Chen , 298 F.3d at 1339 (a single sale by Ta Chen in th e pertinent period of review); Gallant , 602 F.3d at 1324 (sales by exporters other than Ga llant in the pertinen t period of review). Such transactions sufficed under the facts of PAM and Ta Chen but did not suffice under the facts of Gallant . See
PAM , 582 F.3d at 1340; Ta Chen , 298 F.3d at 1339; Gallant , 602 F.3d at 1324. Regardless of their sufficiency, these transactions at least existed on the record of those proceedings. In contrast, the highest transact ion-specific rates calculated by Commerce for a cooperative exporter in the instant ad ministrative review are le ss than 122.88 percent. See Polyethylene Retail Carrier Bags from Thailand—Transaction- Specific Company Margins, U.S. Department of Commerce (January 7, 2009), Confidential Record(“C.R.”) 76 at 2 (ide ntifying rates equal to 77 and 88 percent of the selected AFA rate). 19

19 Because this action is limited to the entries at issue, the court need not determine whether these transaction-specific rates also discredit the use of the 122.88 percent rate to liquidate other entries exported by King Pac or Master Packaging and to collect cash depos its on future exports by these companies. See supra Part IV.A.32 KYD’s information further undermines the relevance of the 122.88 percent rate. The chart below is derived from unadj usted and unverified U.S. sales information provided by or for the four mandatory respondents in the third administrative review. 20 For each transaction, the Y value is the unadjusted U.S. sales price pe r one thousand bags, and the X value is the approximate volume of material per bag. The ch art does not present a complete picture; for example, each X value directly reflects only four of the thirteen variables used by Commerce to describe the merchandise. See, e.g. , Administrative Review of the Antidumping Duty Order on Polyethylene Retail Carrier Bags from Thaila nd – Preliminary Results Analysis Memorandum for [Poly Plast], U.S. Department of Commerce (September 2, 2008) (“Poly Plast Memo”), C.R.
67 at 2. 21 The chart nonetheless suggests a “commercial reality,” Gallant , 602 F.3d at 1323, that is inconsistent with a dumping rate of 122.88 percent. Sales by Poly Plast, which received a “weighted average dumping margin” of 8.94 percent based on “partial adverse facts available,” Final Results, 74 Fed. Reg. at 2,511- 12, appear to [[ compare in a ce rtain way to ]] those reported by KYD for Master Packaging and King Pac, wh ich each received a TAFA rate of 122.88 percent, id. This combination of rates and sales prices implies that the normal value of a plastic

20 The court produced this chart using data from submissions to Commerce on behalf of Naraipak, Poly Plast, and KYD. See Letter from Hunton & Williams LLP to U.S. Department of Commerce, Polyethylene Retail Carrier Bags from Thailand (January 25, 2008) (“Naraipak Submission”), C.R. 9 Ex. 24; Letter from Hunton & Williams LLP to U.S. Department of Commerce, Polyethylene Retail Carrier Bags from Thailand (“Poly Plast Submission”) (January 25, 2008), C.R. 10 Ex. 20; and Letter from Riggle & Craven to U.S. Department of Commerce (January 25, 2008) (“KYD Initial Submission”), C.R. 11 Ex. FIS-2. The chart does not distinguish between sales by Master Packaging and sales by King Pac.
21 The thirteen “characteristic s, in order of importance, are: 1) quality , 2) bag type, 3) length, 4) width, 5) gusset, 6) thickness, 7) percentage of high-density poly ethylene resin, 8) percentage of low-density polyethylene resin, 9) percentage of low linear-density polyethylene resi n, 10) percentage of color concentrate, 11) percentage of ink coverage, 12) number of ink colors, and 13) number of sides printed.” Poly Plast Memo, C.R. 67 at 2. The chart directly reflects length, width, gusset, and thickness. Fu rthermore, Poly Plast and Naraipak reported [[ certain product attributes that compare in a certain way ]] . See Naraipak Submission, C.R. 9 Ex. 24; Poly Plast Submission, C.R. 10 Ex. 20. The high degree of correlation evident from the chart suggests a strong association between the first six variables and normal value.33 bag imported by KYD [[ compares in a certain way to ]] the normal value of a similar bag exported by Poly Plast. In addition, sales by the Naraipak Group, which received a “weighted average dumping margin” of 32.67 percent, id. , [[ compare in a certain wa y to ]] facially similar sales by Poly Plast, Master Packaging, and King Pac. 22

22 Commerce states that “the Court appears to assume that normal value would be constant for all U.S. sales.” Redetermination at 22 (discussing KYD II , 704 F. Supp. 2d at 1332 n.13). Commerce’s belief is incorrect. The court’s observation that “[u]se of total adverse facts available could produce antidumping duties that are highest when the actual margin of dumping is lowest (or nonexisten t)” concerns sales at different prices of identical or substantially similar products. See KYD II , 704 F. Supp. 2d at 1332 n. 13 (positing “certain merchandise [with] a constant normal value of $10”) (emphasis added); see also Poly Plast Memo, C.R. 67 at 2 (“If no identical match was found, we matched the similar merchandise on the ba sis of the comparison-market model which was closest in terms of the physical characteristics to the model sold in the United States”); Administrative Review of the Antidumping Duty Order on Polyethylene Retail Carrier Bags from Thailand – Final Results Analysis Memorandum for [Poly Plast], U.S. Department of Commerce (January 7, 2009), C.R. 74 at 25 (comparing “identical products” as well as “similar products”); February 9, 2011 Oral Argument at 12:25:25-12:33:04.34 [[ This chart, which compares U.S. sales data submitted by KYD (for purchases from King Pac and Master Packaging), Poly Plast, and Naraipak Group, has b een redacted as confidential. ]]

The record evidence necessarily informs the c ourt’s review of Commerce’s selection of a 122.88 percent antidumping duty rate for the entries at issue. See Gallant , 602 F.3d at 1323 (“[The] court reviews the record as a whole, incl uding any evidence that ‘fairly detracts from the substantiality of the evidence,’ in determining whether substantial evidence exists.”) (quoting Micron Tech , 117 F.3d at 1393). 23 The only apparent evidence suppor ting that rate originates in the 2003 petition. See KYD II , 704 F. Supp. 2d at 1326; see also Initiation of Antidumping Duty Investigations: Polyethylene Retail Carrier Bags from The People’s Republic of China, Malaysia,

23 Although Commerce is better positioned than the court to analyze KYD’s information, see De Cecco , 216 F.3d at 1032, it has so far declined to do so in this matter.35 and Thailand, 68 Fed. Reg. 42,002, 42,004 (July 16, 2003) (“Based on comparisons of export price to normal value” provided in the 2003 petition, “the estimated dumping [rates] for [subject merchandise] from Thailand range from 34.84 per cent to 122.88 percent.”) . That evidence amounts to no “more than a mere scintilla,” Ad Hoc Shrimp , 618 F.3d at 1321. Far from supporting a finding of relevance, the record as a whole strongly suggests that a rate of 122.88 percent has no relationship to the actual entries at issue in this third administrative review. 24

V CONCLUSION For the reasons stated above, this ma tter is REMANDED to Commerce for action consistent with this opinion.

__/s/ Evan J. Wallach____ Evan J. Wallach, Judge Dated: April 28, 2011 New York, New York

24 The court need not address KYD’s Eighth Amendment claim. See KYD’s Comments at 26-29. A statutorily proper AFA rate is remedial rather than punitive, KYD I , 607 F.3d at 767-78, and a “punitive” rate is statutorily improper, Gallant , 602 F.3d at 1323 (quoting De Cecco , 216 F.3d at 1032).