Slip Op. 04-47 UNITED STATES COURT OF INTERNATIONAL TRADE BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS

________________________________________ CRAWFISH PROCESSORS ALLIANCE; : LOUISIANA DEPARTMENT OF : AGRICULTURE AND FORESTRY; : BOB ODOM, COMMISSIONER, : : Plaintiffs, : : v. : : UNITED STATES, : : Defendant, : : and : Consol. Court No. : 02-00376 HONTEX ENTERPRISES, INC., d/b/a : LOUISIANA PACKING COMPANY; : QINGDAO RIRONG FOODSTUFF CO., LTD. : and YANCHENG HAITENG AQUATIC : PRODUCTS & FOODS CO., LTD; : BO ASIA, INC., GRAND NOVA : INTERNATIONAL, INC., PACIFIC : COAST FISHERIES CORP., : FUJIAN PELAGIC FISHERY GROUP CO., : QINGDAO ZHENGRI SEAFOOD CO., LTD. : and YANGCHENG YAOU SEAFOOD CO., : : Defendant-Intervenors : and Plaintiffs. : ________________________________________: This cons olid ated action concerns the motion of plaintiffs, Crawfish Processors Alliance, Louisiana Department of Agriculture and Forestry, and Bob Odom, Commissioner (collectively “CPA”) and plaintiffs and defendant-intervenors, Hontex Enterprises, Inc., d/b/a Louisiana Packing Company (“Hontex”), Qingdao Rirong Foodstuff Co., Ltd. (“Qingdao”), Yancheng Haiteng Aquatic Products & Foods Co., Ltd. (“Yancheng”), Bo Asia, Inc. (“Bo Asia”), Grand Nova International, Inc. (“Grand Nova”), Pacific Coast Fi sher ies Corp. (“Pacific C oast ”), Fujian Pelagic Fishery Group Co. (“Fujian”) and Yang cheng Yaou Seafood Co. (“Yaou”) (collectively “Plaintiffs/Defendant-Intervenors”), pursuant to USCIT R. 56.2 for judgment upon the agency record challenging various aspects of the UnitedStates Department of Commerce, International TradeConsol. Court No. 02-00376 Pag e 2

Administration’s (“Commerce”) final results entitled Notice of Final Results of Antidumping Duty Administrative Review, and Final Partial Recission of Antidum ping Duty Administrative Review of Freshwater Crawfish Tail Meat from the People’s Republic of China (“ Final Results ”), 67 Fed. Reg. 19,546 (Apr. 22, 2002). Specifically, Plaintiffs/Defendant-Intervenors contend that Commerce’s determination to se l ect Australia as the appropriate surrogate country for valuation of whole live crawfish was not supported by substantial evidence or in accordance with law. CPA argues that Commerce’s determination to use the list prices from a single Australian company was not the “best available information” of prices for crawfish used in the production of tail meat exported by Chinese crawfish companies. Additionally, CPA complains tha t Commerce improperly rejected information submitted regarding a possible affiliation between Qingdao and another Chinese crawfish exporter. Qingdao and Yancheng contend that Commerce erred in its application of a dry-to-wet weight conversion ratio to the crawfish shell s by-product factor calculation. Hontex complains th a t Commerce improperly rejected certain Hontex filings as untimely submittednew factual information, and that Commerce erred in assigning a single rate to Ningbo Nanlian (“Nanlian”) and Jiangsu Hilong International Trading Company, Ltd. (“Jiangsu”). Bo Asia, GrandNova, Pacific Coast, Fujian, Yaou a nd Hon tex also complain that Commerce’s failure to issue a timely final determination ren ders the F inal Results void ab initio . Bo Asia, Grand Nova, Pacific Coast, Fujian and Yaou contend that: (1) Commerce failed to find that Fujian and Pacific Coast were “affiliated” parties; (2) Commerce erred in assigning Yaou an “adverse facts available” margin; and (3) the statutory provisions fo r the disbursement of collectedantidumping duties to domestic interested parties require Commerce to change its procedures during the administrative review at issue. Held: CPA and Plaitiff/Defendant-Intervenors’ 56.2 motion is grantedin part and denied in part. Case remanded to Commerce with instructions to (1) include the submissions made by Hontex on March 19, 2002, and March 20, 2002, as part of the administrative record andexplain what bearing, if any, these submissions have on Commerce’s final determination; and (2) sufficiently articulate (a) why its collapsing methodology for non-market economy exporters is a permissible interpretation of the antidumping duty statute; and (b) why its findings warranted the collapsing of Jian gsu and Nanlian. Date: May 6, 2004Consol. Court No. 02-00376 Pag e 3

Adduci, Mastriani & Sch aumberg, L.L.P. ( Will E. Leonard and John C. Steinberger ) for Crawfish Processors Alliance, Loui siana Department of Agriculture and Forestry, and Bob Odom, Commissioner, plaintiffs. Coudert Brothers LLP ( John M. Gurley and Matthew J. McConkey ) for Hontex Enterprises , Inc ., d/b/a Louisiana Packing Company, plaintiff and defendant-intervenor. White & Case ( William J. Clinton , Adams C. Lee and Jonathan Seiger ) for Qingdao Rirong Foodstuff Co., Ltd. and Yancheng Haiteng Aquatic Products & Foods Co., Ltd., plaintiffs and defendantintervenors. Garvey Schubert Barer ( William E. Perry , Lizabeth R. Levinson and John C. Kalitka ) for Bo Asia, Inc., Grand Nova International, Inc., Pacific Coast Fisheries Corp., Fujian Pelagic Fishery Group Co., Qingdao Zhengri Seafood Co., Ltd. and Yangcheng Yaou Seafood Co., plaintiffs and defendant-intervenors. Peter D. Keisler , Assistant Attorney General; David M. Cohen , Director, Commercial Litigation Branch, Civil Division, United Sta tes Department of Justice ( David S. Silverbrand ); of counse l : Arthur D. Sidney , Office of the Chief Counsel for Import Administration, United States De pa rtment of Commerce, for the United States, defendant.

OPINION TSOUCALAS, Senior Judge: This consolidated act ion conce rns th e motion of plaintiffs, Crawfish Processors Alliance, Louisiana Department of Agriculture and Forestry, and Bob Odom, Commissioner (collectively “CPA”) and plaintiffs and defendant-intervenors, Hontex Enterprises, Inc., d/b/a Louisiana Packing Company (“Hontex”), Qingdao Rirong Foodstuff Co., Ltd. (“Qingdao”), Yancheng Haiteng Aquatic Products & Foods Co., Ltd. (“Yancheng”), Bo Asia, Inc. (“Bo Asia”), Grand Nova International, Inc. (“Grand Nova”), Pa c ific Coast Fisheries Corp. (“Pacific Coast”), FujianConsol. Court No. 02-00376 Pag e 4

1 The Court notes that while Qingdao Zhengri Seafood Co., Ltd. (“Qingdao Zhengri”) filed a complaint against the United States, it did not file with the Court a motion pursuant to USCIT R. 56.2 for judgment upon the agency record. Pelagic Fishery Group Co. (“Fujian”) and Yangcheng Yaou Seafood Co. (“Yaou”) (collectively “Plaintiffs/Defendant-Intervenors”), 1 pursuant to USCIT R. 56.2 for judgment upon the agency record challenging various as pect s of the United States Department of Commerce, International Trade Administration’s (“Commerce”) final results entitled Notice of Final Results o f An tidumping Duty Administrative Review, and Final Partial Recission of Antidumping Duty Administrative Review of Freshwat er C rawfish Tail Meat from the People’s Republic of China (“ Final Results ”), 67 Fed. Reg. 19,546 (Apr. 22, 2002). Specifically, Plaintiffs/Defendant-Intervenors contend that Commerce’s determination to select Austra l ia as the appropriate surrogate country for valuation of whole live crawfish was not supported by substantial evidence or in accordance with law. CPA argues that Commerce’s determination to use the list prices from a single Australian company was not the “best available information” of prices for crawfish used in the production of tail meat exported by Chinese crawfish companies. Additionally, CPA complains that Commerce improperly rejected information submitted regarding a possible affiliation between Qingdao and another Chinese crawfishConsol. Court No. 02-00376 Pag e 5

2 Since the administrativ e re view at issue was initiated after December 31, 1994, the applicable law is the antidumping exporter. Qingdao and Yancheng contend that Commerce erred in its application of a dry-to-wet weight conversion ratio to the crawfish shells by-product factor calculation. Hontex complains that Commerce improperly rejected certain Hontex filin g s as untimely submittednew factual information, and that Commerce erred in assigning a single rate to Ningbo Nanlian (“Nanlian”) and Jiangsu Hilong International Trading Company, Ltd. (“Jiangsu”). Bo Asia, GrandNova, Pacific Coast, Fujian, Yao u and Hontex also complain that Commerce’s failure to issue a timely final determination renders th e Final Re sults void ab initio . Bo Asia, Grand Nova, Pacific Coast, Fujian and Yaou contend that: (1) Commerce failed to find that Fujian and Pacific Coast were “affiliated” parties; (2) Commerce erred in assigning Yaou an “adverse facts available” margin; and (3) the statutory provisions f or the disbursement of collectedantidumping duties to domestic interested parties require Commerce to change its procedures during the administrative review at issue.

BACKGROUND The administrative review at issue involves the p erio d of review (“POR”) covering September 1, 1999, through August 31, 2000. 2 See Final Results , 67 Fed. Reg. at 19,546. CommerceConsol. Court No. 02-00376 Pag e 6

statute as amended by the Uruguay Round Agreements Act (“URAA”), Pub. L. No. 103-465, 108 Stat. 4809 (1994) (effective January 1, 1995). See Torrington Co. v. Uni ted States , 68 F.3d 1347, 1352 (Fed. Cir. 1995) (citing URAA § 291(a)( 2), (b ) (noting effective date of URAA amendments)). publishedthe preliminary results of the subject review on October 12, 2001. See Notice of Preliminary Results of Antidumping Duty Administrative Review and Preliminary Partial Recision of Antidumping Duty Administrative Review of Freshwater Crawfish Tail Meat From the People’s Republic of China (“ Preliminary Results ”), 66 Fed. Reg. 52,100.

JURISDICTION The Court has jurisdict ion over this matter pursuant to 19 U.S.C. § 1516a (2000) and 28 U.S.C. § 1581(c) (2000).

STANDARD OF REVIEW The Court will uphold Commerce’s final determination in an antidumping administr ative review unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law . . . .” 19 U.S.C. § 1516a(b)(1)( B)(I) (1 994); see NTN Bearing Corp. of Am. v. United States , 24 CIT 385, 389-90, 104 F. Supp. 2d 110, 115-16 (2000) (detailing Court’s standard of review in antidumping proceedings).Consol. Court No. 02-00376 Pag e 7

DISCUSSION I. Commerce Properly Determined to Sel ect Australia as the Surrogate Country fo r Valuation of Whole Live Freshwater Crawfish A. Contentions of the Parties 1. Plaintiff/Defendant-Intervenors’ Contentions Plaintiff/Defendant-Intervenors generally contend that Comme rce erred in rejecting Spain and choosing Australia as the

source of surrogate values for live crawfish. See Pls. Qingdao Yancheng R. 56.2 Mot. J. Upon Agency R. (“Qingdao & Yancheng’s Mem.”) at 8-25; Br. Supp. Pls.’ Mot. J. Agency R. (“Bo Asia’s Br.”) at 27-30; Mem. Supp. Mot. J. Upon Agency R. (“Hontex’s Mem.”) at 4- 15. Bo Asia, Grand Nova, Fujian and Yaou (collectively “Bo Asia et al.”) add that Commerce ignored the best available information on the record by choosing A ust ralian data rather than data from Mexico, a country with an economy more comparable to China. See Bo Asia’s Br. at 29-30. Specifically, Qingdao, Yancheng and Hontex first assert that Commerce abandoned its prior practice of using Spanish import data to establish the surrogate value for live crawfish. See Qingdao & Yancheng’s Mem. at 9-10; Hontex’s Mem. at 10. Qingdao and Yancheng further contend that Commerce must meet a high evidentiary standard andthoroughly explain its reasons for departi ng from its prior practice. See Qingdao & Yancheng’s Mem. at 15. Commerce’sConsol. Court No. 02-00376 Pag e 8

rejection of Spanish data was ba sed upon the observation that import data used in previous reviews indicated a drastic decline in the amount of imports of live crawfish into Spain from Portugal. See Qingdao & Yancheng’s Mem. at 10. Commerce failedto articulate its reasons for discontinuing the use of Spanish import data and why it rejected all forms of data on Spani sh prices for live crawfish. See id. at 10-11. Moreover, Qingdao and Yancheng maintain t hat Commerce should have considered other sources of Spanish data that could be substituted for the Spanish import data used in previous reviews. See id. at 11. Second, Qin gdao , Yancheng and Hontex take issue with Commerce’s reasons for rejecting alternative Spanish crawfish data submitted by interested parties. See id. at 15-17; Hontex’s Mem. at 6-9. Contrary to Commer ce’s determination, the data entitled Estudio Sobre el Impacto Económico del Sector de Congrejo de Rio en Andalucia (the “ Spanish Study ”) was an official government report sanctionedby the regional government of Andalusia, which “approved the study, developed and issued the questionnaire that was used to collect data used in the study, and financed the printing of both the questionnaire and the event ual study.” Qingdao & Yancheng’s Mem. at 16; see also Hontex’s Mem. at 6. Hontex asserts that “[n]owhere in the record is it apparent that the [ Spanish Study ]

was not a ‘government product at all.’” Hontex’s Mem. at 7. InConsol. Court No. 02-00376 Pag e 9

addition, Commerce has tra di tionally relied on similar broad, industry-wide averages and e stim ates as surrogate values. See Qingdao & Yancheng’s Mem. at 17-19 . The data contained in t he Spanish Study demonstrates that Spain was an important market for live crawfish during the POR, “so that prices of that input could reasonably be used as surrogate values in this proceeding.” Id. at 17. Accordingly , Qi ngdao, Yancheng and Hontex complain that Commerce improperly determined t hat the Spanish Study was unreliable and rejected the use of Spanish prices to establish the surrogate value for live crawfish. Third, Qingdao and Yancheng argue that C omme rce “erred in failing to ensure that the [ Spanish Study ] really was unacceptable

as a source of surr ogate data before moving on to use the Australian yabby surr ogate value data.” Id. at 25. Qingdao and Yancheng further complain that Commerce failed to collect the same type of information regarding crawfish and the crawfish tail meat industries during its trip to Spain and Australia. See id. at 21- 25 . Commerce’s analysts during their respective trips “met and interviewedthe same types of government officials and industry representatives in both c ountri es, [yet they] failed to ask them the same, or even comparable, questions.” Id. at 22 . Commerce, for example, failed to collect and report the price of live crawfish in Spain while it did so during its Australia trip. SeeConsol. CourtNo. 02-00376 Page 10

id. Qingdao & Yancheng deduce that Commerce’s divergent approach to the Spanish Study and data from Australia “demonstrates clearly that [Commerce’s] decision to reject the [ Spanish Study ], and hence Spain as a source for price data on which to establish a surrogate value for live crawfish, was arbitrary and not supported by substantial evidence.” Id. at 24.

C ommerce’s regulations require it to use prices or co sts o f factors of production (“F OP” ) in a market economy that is comparable in economi c dev elopment with the non-market economy (“NME”) country under investigation. See Hont ex’s M em. at 10 (citing 19 C.F.R. § 351.408(b) (1999)). Here, record evidence indicates that Spain and not Australia is closer to China’s economic development and, therefore, the better source of surrogate value data for live crawfish. See Hontex’s Mem. at 10-11. Hontex asserts that “[s]ince Spain’s per capita income is closer to China than that of Australia, if the surrogate data is equally valid, then the statutory preference is for Spain.” Hontex’s Mem. at 11 (emphasis in original). The growing season, species and genus of crawfish harvested by Spain is identical to that in China, while such is not the case for Australia. See id. at 14; Qingd ao & Yancheng’s Mem. at 24-25. While Commerce “prefers to use surrogate data for identical merchandise,” here Commerce used the price for Australian yabbies, which is not identical merchandise. Hontex’sConsol. CourtNo. 02-00376 Page 11

Mem. at 14 (emphasis in original). In Australia, the “‘yabby’ is harvestedand sold predominantly in live form, and is not typically processedinto tail meat . . . [while in Spain,] the majority of live crawfish are used for processing.” Qingdao & Yancheng’s Mem. at 13. While Australian processors use only the smallest or deformedyabbies, Spanish processors, like those in China, use all sizes of crawfish to produce tail meat. See id. at 13 -1 4. Consequently, Spain’s prices for live crawfish are more similar to those in China and, therefore, are the “best available” surrogate values. Qingdao and Yancheng concede that prices of live crawfish in Spain were lower than prices in Australia. See id. at 12-13. They argue, however, t hat pr ices in Spain were not aberrational in comparison to world m arket prices. See id. The prices Commerce used“were likely artificially high and ina ppropr iate for use to

e stab lish surrogate values for live crawfish input into crawfish tail meat production.” Id. at 13. Hont ex argues that Commerce improperly relied on Australian prices for live crawfish “that were bas ed on a relatively insignificant quantity.” Hontex’s Mem. at 12. While Spain produced 2,721 metric tons of live crawfish during the POR, Australia only produced 419 metric tons of live crawfish during the same period. See id. In ad dition, Co mmerce “relied upon a single price from a single producer in Australia,” whereasConsol. CourtNo. 02-00376 Page 12

the Spanish Study “accounts for a whole industry, not a single supplier, and covers the whole POR, not a specific moment in time during the POR.” Id. at 13 (emphasis in original). Consequently, Spanish data is superior to the Australian data used by Commerce because it “is more representative of what the price of whole live crawfish would be in China if that price was set up by market price.” Id. In subsequent reviews, Commerce has returned to using Spanish data to establish surrogate values for live crawfish, which shows that the use of Australian data was wrong. See id. at 14-15.

Bo Asia et al. alternatively argue that the re cord s upports the use of prices from Mexico to establish the surrogate value for live crawfish. See Bo Asia’s Br. at 27-30. The re is evi dence establishing the existence of a commercial crawfish industry in the Mexican State of Veracruz, and the exportation of frozen crawfish tail meat to the United States. See id. at 27-28. Bo Asia et al.

m aintai n that, based on gross national income (“GNI”) per capita data obtained from the World Bank, Mexico is closer to China than Australia in terms of economic development. See id. at 29. Con sequen tly, if Spanish data is not used to establish surrogate values, then Mexican data for live crawfish is the “best available information.” See id. at 29-30.

2. Commerce’s Contentions Commerce r espond s that its decision to use Australia as theConsol. CourtNo. 02-00376 Page 13

surrogate country to value the c rawfish input is supported by record evidence and in accordance with law. See Def.’s Mem. Opp. Pls.’ Mots. J. Upon Agency R. (“Commerce’s Mem.”) at 14-27. Commerce is only required, to the extent possible, to select a surrogate country with economic development comparable to that of China. See id. at 14. While Australia’s economic development was substantially higher than China’s, Commerce used Australia because it was the only market economy country with significant production of comparable merc han dise. See id. at 16-17. Commerce’s regulation s “anticipate the possibility of using market economy countries that are not at a level of economic d eve lopment comparable to China.” Id. at 16. Commerce opines that Australia’s annual crawfish production of approximately 290 metric tons was si gnificant for its purposes. See id. at 19. In considering whether Australian y abbie s are comparable to Chinese crawfish, Commerce determined that yabbies are generally larger. See id. at 17. Commerce found, however, that Australian yabbies weighing 30 to 40 grams or blemished yabbies were comparable to Chinese crawfish in size and constituted the “best available information.” See id. at 26.

Commerce asserts that it considered record evidence regarding Spanish and Mexican price data, but found that Australian data was the “best available information.” See id. at 17. CommerceConsol. CourtNo. 02-00376 Page 14

maintains that the Spanish Study was not a governmen t r eport because it was paid for by the owner of a crawfish processor, which competes with other Andulician crawfish processors. See id. at 18. Furthermore, the Spanish Study didnot contain complete price data andwas based on estimates rather than actual transactions. See id. If interested parties “wanted Commerce to consider ‘alternative’ Spanish prices, it was incumbent upon themto provide price data to Commerce.” Id. at 20. Based on these findings, Commerce determined that the Spanish data was no t r eliable and, therefore, not the “best available information.” See id. at 19. With regard to Mexico, Commerce determined that it was not a significant producer of comparable mercha ndi se. See id. at 20. Recordevidence did not establish that Mexico had a commercial freshwater crawfish industry. See id. at 21. Commerce found that statistics gathered by the local Me xica n government “are not limitedto crawfish, are not collected regularly, and a re not representative because these statistics are limited to only two months.” Id. at 22. Consequently, Commerce contends that it properly determined that Mexican crawfish price data was also not the “best available information.” B. Analysis The Court's role in the case at bar is not to evaluate whether the information Commerce used was the bes t avai lable, but ratherConsol. CourtNo. 02-00376 Page 15

3 The statute’s silence regarding the definition of “best available information” provides Commerce with “broad discretion to determine the ‘best available information’ in a reasonable manner on a case-by-case basis.” Timken Co. v. United States , 25 CIT ___, ___, 166 F. Supp. 2d 608, 616 (2001). Furthermore, in evaluating the data, the statute does not require Commerce to follow any single approach. See Luoyang Bearing Factory v. United States , 26 CIT ___, ___, 240 F. Supp. 2d 1268, 1284 (2002). whether Commerce's choice of information is reasonable. 3 See China Nat'l Mach. Imp. & Exp. Corp. v. United States , 27 CIT ___, ___, 264 F. Supp. 2d 1229, 1236 (2003). Commerce's discretion in choosing its information is limited by the statute's ultimate goal “to construct the product's normal value as it would have been if the NME country were a market econom y country. ” Rhodia Inc. v. UnitedStates , 25 CIT ___, ___, 185 F. Supp. 2d 1343, 1351 (2001). While Commerce enjoys broad discretion in determining what constitutes the best in formation available to calculate NV, Commerce may not act arbitrarily in reaching its decision. If Commerce's determination of what co n stitutes the best available information is reasonable, then the Court must defer to Commerce. Here, Commerce’s determination of what constitutes th e best available information is based on sound reasoning. For the reasons set forth below, the Court finds that Commerce’s determinations— that the Spanish data was unreliable and that Me xico was not a significant producer of comparable merchandise—were reasonable.Consol. CourtNo. 02-00376 Page 16

In conducting an administrative review, Commerce determines the antidumping duty margin by tak ing th e difference between the normal value (“NV”) and the United States price of the merchandise. When merchandise is produced in an NME country, such as the People's Re pub lic of China (“PRC”), there is a presumption that exports are under the control of the state. Section 1677b (c) o f Title 19 of the United States Code provides that, “the valuation of the factors of production shall be based on the best available information regarding th e v alues of such factors in a market

eco nomy country or countries considered to be appropriate b y [Commerce].” 19 U.S.C. § 1677b(c)(1) (1994). The statute, however, does not define the phrase “best available information,” it only provides that, “[Commerce], in valuing factors of production . . . shall utilize, to the extent possible, the prices

or costs of factors of production in one or more market economy countries that are—(A) at a level of economic development comparable to that of the nonmarket economy country, and(B ) significant producers of comparable mercha ndis e.” 19 U.S.C. § 1677b(c)(4). To determi ne the comparability of a market economy country’s economic development with that of an NME country, Commerce “will place primary emphasis on per capita GDP as the

measure of economic comparability.” 19 C.F.R. § 351.408(b) (1999). Nonetheless, Commerce is given broad di scretion “to determine margins as accurately as possible, and to use the best informationConsol. CourtNo. 02-00376 Page 17

available to it in doing so.” Lasko Metal Prods., Inc. v. United States , 43 F.3d 1442, 1443 (Fed. Cir. 1994).

The antidumping duty statute authorizes, but does not mandate that Commerce use surrogate countries to estimate the value of the FOP. In legislative history, Congress provided Commerce with guidance by stating that, “in valuing such [FOP], Commerce shall

a voidusing any prices which it has reason to believe or su spec t may be dumped or subsidized prices.” H.R. Conf. Rep. No. 100-576, at 590 (1988), reprinted in 1988 U.S.C. C.A.N. 1547, 1623 (“ House Report ”). The House Report further states that, “the conferees do not intend for Commerce to conduct a formal investigation to ensure that such prices are not dumped or subsidized, but rather intend that Commerce base its decision on information generally available to it at that time.” H.R. Conf. Rep. No. 100-576, at 590-91, reprinted in 1988 U.S.C.C.A.N. at 1623-24.

In the case at bar, Plaintiff/Defendant-Intervenors take issue with Commerce’s reaso n ing for rejecting certain record evidence concerning price data from Spain and Mexico. Com merce responds that it has discretion to determine the “best available in forma tion,” and that it reasonably concluded that Australian yabby prices for the valuation of Chinese crawfish was such information. Section 1677b(c)(1) of Title 19 of the United States Code directs Commerce to use “the best available information”Consol. CourtNo. 02-00376 Page 18

concerning the values for FOP from a market economy when calculating the NV for a product exported from an NME country, such

as the PRC. See China Nat'l , 27 CIT at ___, 264 F. Supp. 2d at 1234. The Cou rt of Appeals for the Federal Circuit (“CAFC”) has reasonedthat “there is much in the statute [19 U.S.C. § 1677b(c)(1) and (4)] that supports the notion that it is Commerce's duty to determine margins as accurately as possible, and to use the best information available to it in doing so.” Lasko , 43 F.3d at 144 3; see also Shakeproof Assembly Components, Div. of Ill. Too l Works, Inc. v. United States , 268 F.3d 1376, 1382 (Fed. Cir. 2001). In previous reviews, Commerce used data on imports into Spain fro mPortugal to value live crawfish input for tail meat. S e e Commerce’s Mem. at 5. For the third administrative review, however, Commerce determined that Spanish imports from Portugal had significantly decreased and the diminished volume was no longer sufficient to constitute a basis for the calculation of surrogate value. See id. Commerce undertoo k a searc h for other market economy country data that would reflect a more substantial volume of trade. See id. Commerce subsequently selected Australia as the surrogate country to value freshwater crawfish input. See id. In doin g so, Commerce compared Australian price data to Spanish and Mexican price data on the record and determined that only the Australian data was appropriate. Commerce stated that “the Spanish Study does not consist of a discrete set of data on live crawfishConsol. CourtNo. 02-00376 Page 19

4 The full title of this d ocument is Issues and Decision Memorandumfor the Final Results of t he Antidumping Duty Administrative Review and Final Partial Reci ssio n of Antidumping Duty Administrative Rev iew of Freshwater Crawfish Tail Meat from th e Peop le’s Republic of China: September 1, 1999 through August 31, 2000 , com piled as a n appendix to the Final Results , 65 Fed. Reg. at 19,546 (generally accessible on the internet at http://ia.ita.doc.gov/frn/summary/prc/02-9802-1.txt). The Court, in the interest of clarity, will refer to this document as Issues & Decision Mem. and mat ch pag ination to the printed documents provided by defendant. See e.g. , Def.’s Pub. Ex. at Tab 25. prices, regularly maintained and published by government authorities.” See Issues & Decision Mem. 4 at 23. Qingdao, Yancheng and Hontex contend that Commerce’s reasoning for finding the Spanish Study unreliable is flawed because it is “an official government report” and Commerce has “tradi t ionally acceptedthis same type of broad-based, industry-wide source of

su rrogate value information.” Qingdao & Yancheng Mem. at 1 6-17 ;

see Hontex’s Mem. at 6-8. Commerce’s conclusion regarding the unreliability of the Spanish Study , however, does not rest solely

on wether it was published by government authorities or if it contains broad-based, industry-wide data. Rather, Commerce noted that “the price data in the Spanish Study were averages calculated

. . . upon numerous assumptions and possibly incomplete and/or inaccurate and/or roughly estimated data.” Issues & Decision Mem. at 25. Commerce reasonably concluded that the Spanish Study does not indic ate how many companies provided information for the allocations it contained and whether the responses to questionsConsol. CourtNo. 02-00376 Page 20

5 The questionnaire sent by the consultant who compiled the Spanish Study “contain ed [ inter alia ] requests for a variety of general information, including the range of pro ducts produced by each [crawfish] company, the percentage of total sales attributable to crawfish, employment numbers for crawfish production, [and,] the percentage of production sold to domestic and/or export markets.” See Issues & Decision Mem. at 23-24.

6 Qingdao and Yancheng contend that Commerce’s rejection of the da ta in the Spanish Study is inconsistent with Commerce’s “established preference to base surrogate values on industry-wide averages rather than on dat a on individual transactions from individual produce rs.” See Qingdao & Yancheng’s Mem. at 18. In rega rding seasonal averages of purchase prices or volumes were complete. See id.

Commerce notes that the con sultant who compiled the Spanish Study explained to Commerce “that some of the [crawfish] companies to which he sent the questionnaire provided full respon ses , and

s ome provided only partial responses—varying in degre e o f completeness.” 5 Id. at 24. Commerce reasonably concluded that it couldnot determi ne tha t there is a “substantial likelihood that the price information contained within [the Spanish Study ] is comprisedof averages and/or is representativ e o f a wide, or otherwise appropriate, range of prices from within the POR, and not potentially distortedby the influence and/or special interests of any private sector parties.” Issues & Decision Mem. at 25-26. Commerce reasonably determined that the price information contained in the Spanish Study reflected unchecked, and possibly incomplete, estimates rather than actual prices. 6 Commerce is charged withConsol. CourtNo. 02-00376 Page 21

the case at bar, however, Commerce principally took issue with the completeness and accuracy of the data and not with whether the data was compiled by a private individual or by a governmental entity. See Issues & Decision Mem. at 25-26.

7 Plaintiffs/Defendant-Intervenors point out that Spain and not Australia’s economic development bas ed on GNI per capita is more comparable to China’s economic development. Nonetheless, for surrogate value purposes, Commerce is charged with more than simply choosing a country with comparable economic development to the NME country involved in the review. Commerce’s ultimate goal is to choose surrogate values that will allow a valuation that reflects the products normal value as if the PRC wer e a marke t economy country. See China Nat’l , 27 CIT at ____, 264 F. Supp. 2d at 1236. The Court notes that while Australian yabbies are not identical to Chinese crawfish used to produce crawfish tail meat, Commerce reasonably determined that the values it chose would aide Commerce in achieving its ultimate goal.

8 Bo Asia et al. also concede that “there cl early is disagreement among [Mexican government] officials regarding the existence of freshwater crawfish tail meat in the Mexican State of Veracruz . . . .” Bo Asia’s Br. at 11. determining antidumping duty margins a s accurately as possible. See Lasko , 43 F.3d at 1443; see also Shakeproof , 268 F.3d at 1382. If Commerce had used the data contained within the Spanish Study , Commerce would have contravened its duty to determine the antidumping duty as accurately as possible. 7 Commerce also reasonably determined that record evidence did not establish th e exis tence of a commercial crawfish industry in Mexico. See Issues & Decision M em. at 36-39. The record indicates, and Bo Asia et al. conced e, that complete official statistics regarding the existence of a crawfish industry in Mexico

are unavailable. 8 See Bo Asia’s Br. at 11. The record containsConsol. CourtNo. 02-00376 Page 22

certain evidence, such as a letter from a local Mexican government official, that indicates the existence of a commercial crawfish industry in Veracruz. See Issues & Decision Mem. at 36. In June of 2001, Commerce sent a team of analysts to Mexi co to rese arch freshwater crawfish and determine whether Mexico has a crawfish industry. See id. at 32. Information gathered from interviews with government and industry officials directly contradicted record evidence regarding the existence of a crawfish industry in Mexico. See id. at 38. Furthermore, Commerce determined that even if the recordevidence “provided dispositive evidence that there was a commercial freshwater crawfish tail meat processing industry, this documentation would not validate the use of flawed statistics for whole, live freshwater crawfish prices.” Issues & Decision Mem. at 39. The Court finds that Commerce’s determinat ion that Mexican price data on the record was inappropriate for use as a surrogate value for whole, live crawfish was reasonable.

II. Commerce P rope rly Used Data from an Australian Company to Calculate NV A. Contention of the Parties 1. CPA’s Contentions CPAcomplains that the surrogate value chosen by Commerce for whole live freshwater crawfish violated 19 U.S.C. § 1677b(c) (1994) because it was not “the best available information” on the record.Consol. CourtNo. 02-00376 Page 23

See Br. CPA Supp. M ot. J. A gency R. (“CPA’s Mem.”) at 5-15. Specifically, CPA argues that Commerce improperly rejected dat a publishedby the Australian Bureau of Agriculture and Re sour ce Economics (“ABARE”) concerning the quantity and value of live crawfish produced and sold in Australia during the POR. See id. at 6. Instead of using the ABARE statistics, Commerce relied on the price list for small and aesthetically blemished crawfish of a single Australian company, Mulataga Party Ltd. (“Mulataga”). See id. Commerce concluded that Chinese tail meat was produced from crawfi sh with live weights of 40 grams or less. See id. CPA contends that this decision was improper bec ause larger crawfish are used in China and Australia to produce tail meat. See id. at 6-7. Additionally, th ere is no record evidence indicating that Chinese tail m eat is exclusively produced from aesthetically blemishedcrawfish. See id. at 6-7. The record demonstrates, however, that Chinese processors use crawfish with live weights ranging from 40 grams to 70 grams. See id. at 6. Commerce reached its co nclusion without addressing specific information on the record, in the Table of Equivalents, indicating that crawfish with live weights more than 40 grams were used to produce Chinese tail meat . Id . at 9. Consequently, CPA complains that “Commerce has failedto provide a reasonable basis for concluding that blemished Aus tralian yabbies of 30-40 grams are the ‘best availabl e ’ surrogate for Chinese crawfish generally, including the crawfish ofConsol. CourtNo. 02-00376 Page 24

41-76 grams known to be used by Chinese processors.” Id. at 12.

C PAfurther contends that Commerce improperly limite d th e factor value to pr ices for “seconds,” whole crawfish that are aesthetically blemished. See id. CPA a sserts that there is no recordevidence that indicates that Chinese crawfish pr o cessors only use “seconds” to produce tail meat. See id. at 13. Aesthetically unblemished crawfish can command a higher price than “seconds” since “an unblemished crawfish is more attrac tive to purchasers who would use it whole.” Id. Accordingly, CPAcontends that “the surrogate value should reflect the fact that, if the Chinese approach of using all sizes of crawfish for tail meat were practicedin a market economy country, the average value of live crawfish inputs would be higher than otherwise.” Id. CPA

com plains that Commerce’s reasons for rejecting the ABA R E sta tist ics does not support its preference for Mulataga’s list prices. See id. at 15. The methodological soundness and reliability of the ABAR E’s statistics were not challenged during the relevant administrative proceeding. See id. T he statistics col lected by the ABARE cover 245-306 metric tons of annual production and are collected and published by an agency of the Australian federal government. See id. CPA maintains that “[n]o other source of crawfish pricing data on the administrative record was collected with the same rigor or by a more qualified source.”Consol. CourtNo. 02-00376 Page 25

Id. Commerce failed, CPA argues, to comply with 19 U.S .C. § 1677b(c)(2) because the ABARE statistics are superior to Mulataga’s price list. See id.

2. Commerce’s Contentions Commerce responds that it properly exercised its discretion in deciding to use Mulataga’s price list for the surr oga te values. See Commerce’s Mem. at 23-27. Commerce has broad discretion in the valuation of FOP and its methodology should be upheld as long as it is reasonable. See id. at 23-24. Here, C ommerce took into consideration the smalle r s ize of Chinese crawfish, which are a different species than the Australian yabby, to determine the appropriate surrogate values. See id. at 24. Recognizing that yabbies are a larger species of crawfish than those used in China, Commerce selected yabby prices that would be comparable to Chinese crawfish. See id. at 27. Commerce also found that, in Australia, yabbies weighing 40 grams or less and larger seconds are more likely pro cessed int o tail meat. See id. at 24. Additionally, Commerce foun d t hat seconds, rather than larger unblemished crawfish, command a lower price, which is more similar to what the price for crawfish should be in the PRC. See id.

Commerce used Mulatag a because its “prices reflected the prices paid by Australian processors to the farmers and catchers at the same point of distribution as the whole live freshwaterConsol. CourtNo. 02-00376 Page 26

crawfish in China.” Id. at 24. Commerce chose Mulataga because it is the largest producer of yabbies in Australia, and its “data was verified, reliable, product-specific, average non-export values representative of prices over several years including the POR . .

. .” Id. In contrast, Commerce found that the ABARE prices on the

r ecordinclude the wider range of crawfish produced in Aus trali a and are thus not comparable to the smaller size Chinese crawfish. Commerce was within its discretion to determine that Mulataga’s prices were the most comparable to Chinese crawfish and, therefore, the “best available information.” B. Analysis The Court rejects CPA’s complaint that Commerce erred in using Mulataga’s price list for the valuation of live crawfish. CPA argues that Commerce’s reasons for rejecting the ABARE statistics does not support its preference for using Mulataga’s list prices. See CPA’s Mem. at 15. CPA further contends that Commerce erroneously concluded that Chinese processors typically us e li ve crawfish weighing only 30-40 grams even though there is record evidence that Chinese crawfish processors use crawfish weighing 41- 76 grams. CPA’s Mem. 8-9. The Court, however, does not agree because Commerce’s det ermination was reasonable and supported by substantial record evidence. Agency statements provide guidance to regulated industries.Consol. CourtNo. 02-00376 Page 27

“‘An [agency] announcement stating a change in the method . . . is

no t a general statement of policy.’” American Trucking Ass’ns , Inc. v. ICC , 659 F.2d 452, 464 n.49 (5 th Cir. 1981) (quoting Brown Express, Inc. v. United States , 607 F.2d 695, 701 (5 th Cir. 1979) (interna l qu otations omitted)). While a policy denotes “the general principles by which a government is guided” by laws, B LACK ’ S L AW D ICTIONARY 1 178 (7th ed. 1999) (emphasis added), methodology refers only to the “ mod e o f organizing, operating or performing something, especially to achieve [the goal of a statute].” Id. at 1005 (defi n ing mode) (emphasis added). Accord Avoyelles Sportsmen’s League, Inc. v. Marsh , 715 F.2d 897 (5 th Cir. 1983); Inter state Natural Gas Ass’n of Am. v. Federal Energy Regulato r y Comm’n , 716 F.2d 1 (D.C. Cir. 1983); Hooker Chems. & Plastics Corp.

v. Train , 537 F.2d 620 (2d Cir. 1976). Consequently, th e cou rts are even less in the position to question an agency action if the action at issue is a choice of methodology, rather than policy. See, e.g. , Maier, P.E. v. United States Envtl. Prot. Agency , 114 F.3d1032, 1043 (10th Cir. 1997) (citing Professional Drivers Council v. Bureau of Motor Carrier Safety , 706 F.2d 1216, 1221 (D.C. Cir. 1983)). Commerce’s methodology does not have to be “the only way or even the best way to calculate surrogate values for factors of production as long as it was reasonable.” Shandong Huarong Gen. Corp. v. United States , 25 CIT ___, ___, 159 F. Supp. 2d 714, 721 (2001).Consol. CourtNo. 02-00376 Page 28

Commerce has broad discretion in deciding what constitutes the best available information. The Court’s role in evaluating CPA’s challenge to Commerce’s methodology is to determine whet her such methodology is supported by substantial evidence and in accordance with law. See id. Commerce notes that it would have preferred to

use the ABARE prices to value live crawfish. See Issues & Decision Mem. at 22. The ABARE price data, however, contained information

on prices paid for all sizes of yabby. The difference in crawfish sizes used by tail meat producers in Australia and China, and “the fact that only the small, seconds or surplus yabbies go into tail meat production in Australia, [led Commerce] to conclude that using the tota l value and volume inclusive of all sizes, as issuedb y ABARE, is not appropriate in this case . . . .” Issues & Decision Mem. at 15. Commerce reasonably concluded that smaller yabbies, while not identical to Chinese crawfish, were comparable to Chinese crawfish in size, see id. at 14, and that Mulataga’s price list was a better source for surrogate values than the ABARE data.

III. Commerce’s Properly Rejected Information Regarding a Possible Affiliation Between Qingdao and a Chinese Crawfish Exporter 1. Contentions of the Parties A. CPA’s Contentions CPAcomplains that Commerce improperly rejected evidence that Qingdao had failed to disclose all relevant corporate affiliations.Consol. CourtNo. 02-00376 Page 29

See CPA’s Mem. at 16-22. Specifically, CPA contends that the final antidumping duty margin for Qingdao should be based on adverse facts available because the record indicates that Qingdao failed to disclose its affiliation with another producer and exported of the subject merchandise, China I/E Corporation of State Farms, Qingdao Branch (“China I/E”). See id. at 17-18. On November 1, 2001, CPA submittedpublicly available information (“PAI”) consisting of six exhibits number 28 through 32 (“November Submission”). See id. at 16. The November Submission included pages from a website that identifiedMrs. Wang Shuzhen as the general manager for China I/E. See id. It also included pages describi ng th e specific sizes of crawfish tail meat produced and offered for export sale by China I/E. See id. The portion of Exhibit 30 that showed that China I/E produced tail meat in the size range of 60-80 tails per pound was “usedto support a calculation of a possible surrogate value for liv e crawfis h.” Id. at 17. In addition, Exhibit 30 included domain name registration data indicating that China I/E owned the webs ite’s dom ain name. See id. 16-17. CPA maintains that it includedthis infor matio n in the November Submission to authenticate the information submitted. See id. Accordingly, CPA contends that the November Submission did not contain new factual information pursuant to 19 C.F .R. § 351.301(c)(3) (1999) because its purpose was to show that Qingdao produced tail meat in the size range of 60-80 tails per pound. See id. at 17-21.Consol. CourtNo. 02-00376 Page 30

While the November Submission’s purpose was to aide Commerce in choosing a surrogate value, Exh ibit 3 0 also demonstrates that China I/E and Qingdao were affiliated entities, which indicates that Qingdao had not been forthcoming in disclosing its corporate affiliations. See id. at 20. Although the information regarding Qingdao and Chin a I/ E was placed on the record in the November Submission, CPAwas precluded from making any legal arguments about the possible affiliation between the two companies. See id. at 19. Commerce did not address any of the information contained in the November Submission until March 21, 2002. See id. at 18. Commerce informedthe parties, prior to the public hearing on March 22, 2 002, t hat the pages in the November Submission regarding the domain name registration were to be stricken from the record as untimely new factual information. See id. at 19. Commerce indicated, however, that several pages in the November Submission regarding surrogate values were not untimely and would be retained on the record. See id.

CPAmaintains that “there can be no question that PAI Exhibit 30 [of the November Submission] was timely submitted.” Id. at 21. Rather, CPA argues that the central issue is whether Exhibit 30 “couldlegitimately be used for any purpose other than assigning a specific surrogate value to a specific factor of production.” Id. There is no statutory provision or regulation that precludes timelyConsol. CourtNo. 02-00376 Page 31

arguments based on timely factual information. CPA states that 19 U.S.C. § 1677m(g) (1994) “requires Commerce to accept comment from all interested parties regarding the factual information on the administrative record.” CPA’s Mem. at 21. Moreover, CPA maintains that, under 19 U.S.C. § 1516a( b)(2)( A)(i) (1994), the administrative record includes all information presented to Commerce during the administrative proceeding. See id.

Since the deadline for submissions of factual information had already lapsed, Commerce was left with two options. See CPA’s Mem. at 22. Commerce could have left the record close d an d applied adverse inferences against Qingdao, or requ ested further information about Qingdao’s corporate affiliations and rendered a decision accordingly. See id. Rather, Commerce chose to reject the information as part of the record. See id. Accordingly, CPA requests that the issue be rem anded to Commerce to reconsider Qingdao’s dumpi ng margin “in light of record evidence of its undisclosedaffiliation with China I/E Corp. or s uch other evidence,” which Commerce may discover upon reopeni ng t he record and further investigating. Id.

B. Commerce’s Contentions Commerce responds that it properly rejected parts of CPA’s November Submission regarding a possible affiliation between Qingdao and China I/E because the regulatory deadline forConsol. CourtNo. 02-00376 Page 32

submissions of new factual information had expired. See Commerce’s Mem. at 27-31. Commerce’s regulat ions s pecify deadlines for the receipt of particular information. See id. at 28. In the case at bar, the deadline for the receipt of new factual informati on , pursuant to Commerce’s regulations, was February 17, 2001. See id. The deadline for the submission of PAI to value FOP was 20 days after the publication of the Preliminary Results , 66 Fed. Reg. 52,100, which was Novem ber 1, 200 1. See Commerce’s Mem. at 28. Commerce contends th at the information regarding a possible affiliation between Qingdao and China I/E was new factual information unrelated to the valuation of FOP submitted after the deadline for such information. See id. at 29.

Co ntrary to CPA’s assertion, Exhibit 30 of the Novem be r Submission did not re late to the valuation of FOP. See id. The first two pages contained information about the different sizes of crawfish tail meat produced and exported by a Chinese crawfish company. See id. The next two pages, however, contained domain

name registration information. See id. Commerce asserts that “the only argument that CPA advanced was that [Commerce] should use Australian surrogate values for crawfish in the 40-70g size range because crawfish in that range are used by the Chinese freshwater crawfish companies to produce subject merchandise.” Id. In its

case brief submittedon November 27, 2001, CPA argued for the firstConsol. CourtNo. 02-00376 Page 33

time that the record showed Mrs. Wang Shuzhen was the general manager of Qingdao and that after the P OR she became the general manager of China I/E. See id. Commerce’s “regulations establish deadlines in order to afford Commerce ample time to investigate the allegations raised by interested parties.” Id. at 30. Here, Commerce had already verified Qingdao’s questionnaire responses. See id. at 30-31. Consequently, Commerce maintains that it properly rejected the information regarding a possible affiliation containedin the November Subm is sion because this information “could not be subject to verification or meaningfully analyzed by [Commerce] . . . .” Id. at 31. 2. Analysis Commerce’s regulations set forth the deadlines for the receipt of parti cular information from interested parties in an administrative proceeding. See 19 C.F.R. § 351.301 (1999). The deadline for the submission of factual information is 140 days after the ann iversary month. See 19 C.F.R. § 351.301(b)(2). Interestedparties may submit PAI to value FOP within 20 days after t he publication date of Commerce’s preliminary results. See 1 9 C.F.R. 351.301(c)(3)(ii). In the case at bar, CPA argues that Commerce ignored these regulations and improperly rejected information submitted as untimely submitted new factual informatio n. The Court finds, however, that Commerce properly rejectedthe portions of th e November Submission that did notConsol. CourtNo. 02-00376 Page 34

relate to the valuation of FOP. The Court agrees with CPA that Exhibit 30 contained PAI to value FOP. CPA essentially argues, however, t hat if Commerce accepts portions of the November Submission, then Commerce must acc ept all of the information contained therein. The Court does not agree because, pursuant to its regulations, Commerce is not req uir ed to accept new factual information after the deadline has expired. See 19 C.F.R. § 351.301. Commerce may reject actual information imbedded in PAI to value FOP if such information does not relate to FOP valuation.

The information regarding the possible affiliation between Qingdao and China I/E is not related to the information submitted for the valuation of FOP. The only information contained in Exhibit 30 relating to FOP concerns the size of tail meat produced in China. See App. Br. CPA Supp. Mot. J. Agency R. (“CPA’s App.”) at Tab 5. The deadline for the submission of PAI to value FOP was November 1, 2001. See 19 C.F.R. § 351.301(c)(3)(ii). Accordingly, Commerce correctly included in the record the portions of Exhibit 30 that pertained to the proper choice of surrogate values. Commerce was not required b y i ts regulations to include factual information submiss ions after the deadline for such, which was February 17, 2001. See 19 C.F.R. § 351.301(b)(2); see also Reiner Brach GmbH & Co.KG v. United States , 26 CIT ___, ___, 206 F. Supp. 2 d 1 323, 1334 (2002) (stating that “[t]his Court has previouslyConsol. CourtNo. 02-00376 Page 35

9 “Scrap” is the term used to describe part of the crawfish not used in the production of crawfish tail meat and principally consists of crawfish shell, unused meat and water. See Hontex heldthat Commerce has broad discretion to establish its own rules governing administrative procedures, including the establishment and enforcement of time limits, to be reasonable . . .”). If CPA hadsubmitted information regarding the possible affiliation of the two companies prior to February 17, 2001, however, Commerce would have been required to accept the information as part of the administrative record. See 19 C.F.R. § 351.301(b)(2). CPA failed to submit such information prior to the February deadline. See CPA’s App. at Tab 5. Consequently, the Court finds that Commerce properly rejected portions of the November Submission unrelated to the valuation of FOP as untimely new factual information.

IV. Commerce Properly Adjusted Qingdao and Yancheng’s By-Product Offset to NV 1. Contentions of the Parties Qingdao and Yancheng complain that Commerce erred in its calculation of NV and contravened its previous surrogate value methodology. See Qingdao & Yancheng’s Mem. at 25-29. Specifically , Qi ngdao and Yancheng argue that Commerce did not adjust the total cost of production by the full offset value of byproduct shell scrap resulting from the production of crawfish tail meat. 9 See id. at 25. Instead, Commerce reduced the offset byConsol. CourtNo. 02-00376 Page 36

Enter., Inc., d/b/a Louisiana Packing Co. v. United States , 27 CIT ___, ___, 248 F. Supp. 2d 1323, 1348, n.24 (2003).applying a “wet-dry conversion factor” of 27.5 percent to the byproduct offset. See id. Commerce’s established practice is to calculate NV for NME respondents as if the NME producers’ FOP were in a market economy country. See id. In the case at bar, Commerce rejectedthe adjustment of surrogate values according to the particular experiences of the respondents. See id. at 26. In the past, Commerce h as “ac cept[ed] the surrogate values as they are, and not attempted to adjust those values for differences, whether real or perceived, between the production proces ses used by the surrogate country producer(s) and the NME producers.” Id. at 27. Here, Commerce found that Chinese producers dried crawfish shells in the sun and sold them as a by-product. See id. Commerce compared this process to information from a Canadian company that sold industrially dried shell scrap. See id. at 26.

Commerce concluded that an adjustment to the offset was required because the two drying process were not comparable. See id. Qingd ao and Y ancheng assert that there is no basis for Commerce’s comparison of drying methodology of an NME producer to that of a surrogate producer. See id. at 27. Moreover, Commerce’s analysis contains factual flaws because it assumed that all of the respondents dried the crawfish shell scraps sim ilarl y, withoutConsol. CourtNo. 02-00376 Page 37

verifying reports of each individual company. See id. The record does not substantiate Commerce’s c oncl usion that Qingdao’s scrap she lls were not completely dry when sold. See id. at 27-28. Qingdao and Yancheng challenge the use of a wet-dry conversion factor of 27.5 percent when the term “half-dry” used in the verification report for Qingdao, “suggest[s] that the ratio should be at least 50-50.” Id. at 28. Commerce’s conclusion that sun driedshells are less dry than those put through an industrial process is not supported by record evidence. See id.

Commerce responds that it was proper to apply a wet-dry conversion factor to the crawfish by-product factor. See Commerce’s Mem. at 31-35. Commerce asserts that it reasonably applieda 27.5 percent conversion factor because the scrap value on the record is for shells industrially dried. See id. at 32-33 . To determine the value of the by-product, Com mer ce used a price qu otation of a Canadian seller of crustacean scrap, whic h wa s industrially dried. See id. at 33. Commerce m aintains t hat no information was placed on the record demonstrating that the Chinese “co mpanies’ ‘half dry’ or ‘sun-dried’ shells are comparable t o industrially dried shells.” Id. Qingdao and Yancheng had the burden, and failed, to place contradictory information on the recordcalling into question the accuracy of the wet-dry conversion factor. See id.Consol. CourtNo. 02-00376 Page 38

2. Analysis The Court finds that Commerce reasonably determined that a conversion factor was necessary to better reflect the value of the crawfish by-product. See Hontex , 27 CIT at ___, 248 F. Supp. 2d at 1348-49. Qingdao and Yancheng essentially argue that Commerce used unreliable and unsubstantiated information in determining to use a 27.5 percent conversion factor . Non e of the interested parties, however, submitted information to contradict or put into question the accuracy of the 27.5 percent conversion factor. Without any contradictory evidence on the record, Commerce properly concluded that industrially dried shells are different than “sun dried ” or half-dried” shells. In valuing FOP in the NME country context, Commerce enjoys considerable discret ion . See Lasko , 43 F.3d at 1446; see also H ontex , 27 CIT at ___, 248 F. Supp. 2d at 1349 (holding that Commerce’s use of a wet-dry conversion factor to calculate a value for crawfish tail meat scrap is supported by substantial evidence and in accordance with law). Here, Commerce reasonably applied its discretion in applying a wet-dry conversion factor of 27.5 percent to the by-product offset for crawfish.

V. Commerce Improperly Rejected Certain Submission’s by Hontex as “New Information” 1. Contentions of the Parties Hontex complains that Commer ce er red in rejecting certainConsol. CourtNo. 02-00376 Page 39

submissions made to rebut reports made after its analysts’ trip to Spain. See Hontex’s Mem. at 15-23. Hontex submitted certain exhibits on March 19, 2002, and Marc h 20, 2002, relating to a crawfish study prepared by a Dr. Martinez, a publ ic notice of a conference where Dr. Martinez report ed the results of his study,

a ndthree affidavits from individuals interviewed by Commer c e during its trip to Spain to gather information about the Spanish crawfish industry (the “Spanish Trip”). See id. at 16. Commerce, however, rejected certain portions of Hontex’s submission that it deemednew factual information. See id. Hontex contends that the information is not new factual informati on bec ause the study and not ice of appearance rebut and clarify Commerce’s Spanish Tr i p report. See Hontex’s Mem. at 17-18. Hontex asserts that there is

a “high probability that [Commerce] itself alr eady has knowledge (if not a copy) of Dr. Martinez’s study, [and] it would be unfair andunreasonable to penalize Respondents,” because Commerce failed to place the study on the record. Id. at 19. In addition, Hontex maintains that the three affidavits it submitted were meant to demonstrate that the Spanish Trip report was incomplete and factually incorrect. See id. The information submitted casts doubt on the veracity of Dr. Martinez’s statements and the accuracy of the Spanish Study . See id. at 17-18. Hontex argues that this information “was already incorporated by reference into the record, andwas thus not ‘new factual information’ pursuant to 19 C.F.R. §Consol. CourtNo. 02-00376 Page 40

351.301.” I d. at 17 . By placing the Spanish Trip report on the record, Commerce placed new factual information on the record thereby allowing Hontex t o submit clarifying or rebuttal info rmation. See id. Finally, even if the information Hon te x submittedwas deemed “new factual in form ation,” Commerce has the discretion pursuant to 19 C.F.R. § 351.302 (1999) to accept such information. See id. at 20.

Commerce responds that the information submitted by Hontex did not rebut, clarify or correct factual information provided by

ano ther interested party. See Commerce’s Mem. at 36. Comme rc e maintains that 1 9 C.F.R. § 351.301(c)(1) “specifically provides that rebuttal or clarification information can be submitted in response to information submitted ‘by any other interested party,’” anddoes not apply to information Commerce places on the record. Id. at 37. Commerce further argues that Hontex has the burden of creating an adequate record. See id. Accordingly, any reference to the study and the conference attended by Dr. Ma rtinez in the Spanish Study “does not provide Hontex with the latitude or authority to submit new information on the record.” Id. Commerce maintains that it properl y ex ercised its “expressedgrant of authority provided by the regulations and determined not to exercise its discretion in declining to accept the information that Hontex submitted.” Id. at 38.Consol. CourtNo. 02-00376 Page 41

2. Analysis The deadline for new factual information, pursuant to 19 C.F.R. § 351.3 01( b)(2) is 140 days after the last day of the anniversary month. In the case at bar, the dead lin e for new factual information submissions was February 17, 2001. Pursuant to 19 C.F.R. § 351.301(c)(1), “[a]ny interested party may submit fac tual information to rebut, clarify, or correct factual information submitted by any other in ter ested party at any time prior to the deadline provided in this section for submission of such factual information . . . no later than 10 days after the date such information is served on the interested party . . . .” Hontex argues that its submissions of March 19, 2002, and March 20, 2002,

were made to rebut and clarify Commerce’s findings contained in its Spanish Trip report, which was placed on the record on M arch 12, 2002. See Hontex’s Mem. at 15-23. Commerce re sponds th at it prope rly exercised its discretion and rejected the information submittedby Hontex as too late in the proceeding. The Court does not find this argument convincing and finds that Commerce improperly rejected Hontex’s submissions.

Commerce’s regulations allow for interested parties to submit fact ual information that rebuts, clarifies or corrects factua l submissions made by interested parties. See 19 C.F.R. § 351.301(c)(1). Commerce asserts that Hontex’s submission does notConsol. CourtNo. 02-00376 Page 42

clarify or rebut factual information submitted by an interested party since Commerce, placed the Spanish Trip report on the record. This argument is unsustainable because under Commerce’s interpretation of its regulations, Commerce could place erroneous factual information on the record and interested parties would not be afforded the opportunity to rebut or clarify such record evidence. While Hontex has the burden of creating an adequate recordwithin the regulatory guidelines, Hontex, in this instance, met its burden. Commerce invited parties to provide comments to the Spanish Trip report after it was placed on the record and gave thema deadline of March 18, 2002, which was then extended to March 19, 2002. See Def.’s Pub. Ex. at Tabs 21-24. Hontex complied with this deadline, yet Commerce rejected Hontex’s comments on the Spanish Trip report as untimely new factual information. See id. at Tab 24. Hontex’s comments wer e meant t o clarify and rebut Commerce’s Spanish Tri p re port, yet Commerce merely rejected the information as untimely new factual information. See id. Consequently, the Court remands this issue with instructions to Commerce to include the submissions made by Hontex on March 19, 2002, and March 20, 2002, as part of the administrative record and explain what bearing, if any, these submissions have on Commerce’s final determination.Consol. CourtNo. 02-00376 Page 43

10 The Court notes that Hontex does not fully address its complaints in its brief. Rather, in Exhibit 1 to its brief, almost as an afterthought or indeed to avoid page limitations imposed by the Court, Hontex includes additional arguments as to why Commerce’s assignment of a joint rate was in error. See Hontex’s Mem. at Ex. 1. VI. Commerce’s Determination to Assign a JointRate to Nanlian and Jiangsu 1. Contentions of the Parties A. Hontex’s Contentions Hontex complains tha t Commerce erred in applying a single antidumping duty rate to Nanlian and Jiangsu. See Hontex’s Mem. at 23-24. Specifically, Hontex argues that this issue was previously decided by the Court in Jiangsu Hilong Int’l Trading Co., Ltd. v. UnitedStates , 26 CIT ___, 240 F. Supp. 2d 1313 (2002). See id. at 23. Plaintiff, in that case, sought and received a temporary restraining order and preliminary injunction dated June 4, 2002. See id. Hontex maintains the “Court affirmed the assignment of a separate deposit rate for Jiangsu Hilong.” 10 See id. at 24

B. Commerce’s Contentions Commerce contends that it properly determined that Nanlian and Jiangsu should be treated as a single entity and assessed them the

same antid umping duty rate. See Commerce’s Mem. at 39-46. Beginning with the first administrative review, Commerce found that the “nature of the r elat ionships between these two companies constituteda web of contro l r elationships such that prices andConsol. CourtNo. 02-00376 Page 44

exports were subject to significant manipulation.” Id. at 39. In the review at issue, Commerce continued to treat the two companies

as a single entity because it “found evidence of a ‘continuing commercial relationship’ between these companies, and evidence of a ‘continuing business relationship’ between Mr. Wei Wei and both companies.” Id. at 39-40. Commerce made this determination after

co nsidering evidence uncovered at verification. See id. at 4 3 . Commerce maintains that “[w]hile Hontex takes issu e wi th the agency’s reliance upon the inf or mation on this administrative

reco rdand from prior proceedings, the burden of producing information in an administrative proceeding lie s wi th the interested party.” Id. Commerce determined that no new evidence hadbeen presented during the review. See id. Consequently, Commerce did not reconsider the relationsh ip b etween Jiangsu and Nanlian. See id.

Commerce also asserts that Hontex’s complaint is defectiv e because it failed to raise its arguments be fore Commerce; “[The argument] was raised for the first time before this Court.” Id. at 40. Under the doctrine of exhaustion of administrative remedies, this Court should not con sider Hontex’s complaint because it was not raised at the administrative level. See id. at 40-41. Commerce asserts that “[t]his is especially so where Commerce has not changed its determination between the preliminary and finalConsol. CourtNo. 02-00376 Page 45

results but the com plainant failed to avail itself of the

o pportunity to raise its argument during the administrat iv e proceeding.” Id. at 41. Additionally, Commerce points out that, contrary to Hontex’s assertion, this Court did not rule on the merits of the issue in Jiangsu , 26 CIT ___, 240 F. Supp. 2d 1313. Rather, the Court ruled on a procedural matter and “only determined that Jiangsu had met the thre shold for granting a preliminary injunction . . . .” Id. at 45. 2. Analysis As a preliminary m atte r, Commerce contends that Hontex is precludedfrom raising the issue of Commerce’s assignment of a single antidumping duty rate to Jiangsu and Nanlian pursuant to the doctrine of exhaustion of administrative remedies. See Commerce’s Mem. at 4 0-41. Commerce argues that Hontex failed to raise i t s argument regarding the assignment of a single duty rate on the administrative level prior to raising the issue before this Court. See id. The Court rejects Commerce’s arguments and finds, for the

reasons set forth below, that Hontex is not precluded from raising the issue before this court.

The exhaustion doctrine requires a party to present its claims to the relevant adm in istrative agency for the agency’s consideration before raising these claims to th e C ourt. See Unemployment Comp. Comm’n of Alaska v. Aragon , 329 U.S. 143, 155Consol. CourtNo. 02-00376 Page 46

(1946) (“A reviewing court usurps the ag ency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the [agency] of an opportunity to consider the matter, make its ruling, and state the reasons for its acti on. ”) There is, however, no absolute requirement of exhaustion in the Court of Internati o nal Trade in non-classification cases. See Alhambra Foundry Co. v. United States , 12 CIT 343, 346-47, 685 F. Supp. 1252, 1255-56 (1988). Section 2637(d) of Title 28 of the United States Code states that “the Court of International Trade shall, where appropriate, require the exhaustion of administrative remedies.” By its use of the phrase “where appropriate,” Congress vested discretion in the Court to determine the circu mst ances under which it shall require the exhaustion of administrative remedies. See Cemex, S.A. v. United States , 133 F.3d 897, 905 (Fed. Cir. 1998). Therefore, because of “judicial discretion in not requiring litigants to exhaust administrative reme dies,” the Court is authorized to determine proper exceptions to the doctrine of exhaustion. Alhambra Foundry , 12 CIT at 347, 685 F. Su pp. at 1 256 (citing Timken Co. v. United States , 10 CIT 86, 93, 630 F. Supp. 1327, 1334 (1986), rev’d in part on other grounds , Koyo Seiko Co. v. Un ited States , 20 F.3d 1156 (Fed. Cir. 1994)).Consol. CourtNo. 02-00376 Page 47

The Court exercises its discretion to obviat e exhaustion where: (1) requiring it would be futile, see Rhone Poulenc, S.A. v. UnitedStates , 7 CIT 133, 135, 583 F. Supp. 607, 610 (1984) (in those cases when “it appears that it would have b een futile for plaintiffs to argue that the agency should not apply its own regul ation”), or would be “inequitable and an insistence of a useless formality” as in the case where “there is no relief which plaintiff may be granted at the administrative level,” United States Cane Sugar Refiners’ Ass’n v. Block , 3 CIT 196, 201, 544 F. Supp. 883, 887 (1982); (2) a subsequent court decision has interpretedexisting law after the administrative determination at i ssue was published, and the new decision might have materia ll y affectedthe agency’s actions, s ee Timken , 10 CIT at 93, 630 F. Supp. at 1334; (3) the question is one of law and does not require further factual deve lopm ent and, therefore, the court does not invade the province of the agency by considering the question, see id. ; R.R. Yardmasters of Am. v. Harris , 721 F.2d 1332, 1337-39 (D .C. C ir. 1983); and (4) the plaintiff had no reason to suspect that th e agency would refuse to adhere to clearly applicable precedent. See Philipp Bros., Inc. v. United States , 10 CIT 76, 79-80, 630 F. Supp. 1317, 1321 (1986).

While a plaintiff cann ot circumvent the requirements of the doctrine of exhaustion by merely mentioning a broad issue withoutConsol. CourtNo. 02-00376 Page 48

11 Hontex contends that the exact issue and set of facts regarding the assignme nt of a single duty rate was previously raising a particular argument, plaintiff’s brief statement of the argument is sufficient if it alerts the agency to the argument with reasonable clarity and a vai ls the agency with an opportunity to address it. See generally , Hormel v. Helvering , 312 U.S. 552 (1941); see also Rhone Poulenc Inc. v. United States , 899 F.2d 1185, 1191 (Fed. Cir. 1990). The sole fact of an agency’s failure to address plaintiff’s challenge does not invoke the exhaustion doctrine and shall not result in forfeiture of plaintiff’s judicial remedies. See generally , B-West Imports, Inc. v. United States , 19 CIT 303, 880 F. Su pp. 8 53 (1995). An administrative decision to ignore the issue cannot be dispositive of the question whether or not the issue was properly brought to the agency’s attention. See, e.g. , Allnutt v. United States DOJ , 2000 U.S. Dist. LEXIS 4060 (D. Md. 2 000). In the case at bar, Commerce had a sufficient opportuni ty to address the propriety of assigning a single rate duty to Jiangsu and Nanlian. While Nanlian did not raise the issue in its case brief, Commerce was sufficiently alerted of the issue by Jiangsu in its case brief. See Def.’s Pub. Ex. at Tab 18. The central issue in Jiangsu’s case brief is the assignment of one duty rate to Jiangsu and Nanlian. See id. Hontex is not precluded from raising the issue before this Court because Commerce was provided with an opportunity to address the issue. 11Consol. CourtNo. 02-00376 Page 49

decidedby the Court in Jiangsu , 26 CIT ___, 240 F. Supp. 2d 1313. According to Hontex, the Court determined that Jiangsu and Nanlian are separate entities. See Hontex’s Mem. at 23-24. The issue in the case, however, was not whether the two companies are separate entities. The Court ruled on a procedural matter, whether Jiangsu hadmet the t hreshold for granting a preliminary injunction, and not on t he merit s of the case. See Jiangsu , 26 CIT ___, 240 F. Supp. 2d 1313.

12 Commerce’s assig nme nt of a single duty rate to two or more entities is also referred to as “collapsing” the entities into a single entity. See Hontex , 27 CIT at ___, 248 F. Supp. 2d at 1337-1342. While the antidumping duty statute does not expressly provide for the collapsing of entities, this Court has upheld the pra ctic e, in the market economy context, as a reasonable interpretation of the statute. See id . (dis cussing the steps Commerce follows in determining whether a market economy producer should be collapsed)

. During the review at issue, Commerce found e videnc e of a continuing commercial relationship between Jiangsu and Nanlian and applied a single duty rate to the two companies as it had done in its previous administrative reviews. 12 Commerce’s NME exporter collapsing methodology—applied in the first administrative review for the subject merchandise—is permissible to the extent that Commerce follows marke t economy collapsing regulations. See Hontex , 27 CIT at ___, 248 F. Supp. 2d at 1342. Where Commerce’s NME collapsing methodolo gy has departed from the regulations

co ncerning market economy collapsing, however, the Court must determine “whether Commerce has sufficiently articulated a perm issible interpretation of the antidumping statute with i t sConsol. CourtNo. 02-00376 Page 50

13 The Court thoroughly discusses, in turn , each of the factors considered by Commerce in its collapsing methodology for NME country exporters. See Hontex , 27 CIT at ___, 248 F. Supp. 2d at 1342-1347. stated NME collapsing methodology.” 13 Id. at 1341.

In the case at bar, Commerce found that the nature o f th e connections between the two companies constituted a web of control

re lationship. Commerce asserts that it re-examinedth e relationship between the two companies and conducted a verification of the information presented during this review. See id. Commerce argues that Hontex had the burden of creat ing an administrative record, but failed to produce any evidence indicating a change in circumstances. See Commerce’s Mem. at 43-44. Commerce concluded that “the relationships existing in 1997, which formed the ba si s for the finding that these two entities were so intertwined that they should be assigned a single rate, remain essentially unchanged.” Id. at 44. Based on the reasoning found in Hontex , 27 CIT ___, 248 F. Supp. 2d 1323, it is not “ clear . . . which set of factors formed the basis of Commerce’s collapsing determination.” Queen’s Flowers De Colom. v. United States , 21 CIT 968, 979, 981 F. Supp. 617, 628 (1997). Accordingly, the Court remands this issue for further proceedings with instruct i ons to Commerce to sufficiently articulate: (a) why its collapsing methodology for NME exporters is a permissible interpretation of the antidumping duty statute; and (b) why its fi ndings warranted the collapsing ofConsol. CourtNo. 02-00376 Page 51

14 Bo Asia et al. contend that the deadline for the issuance of the Final Results was February 11, 2001. See Bo Asia’s Br. at 14. Jiangsu and Nanlian.

VII. Commerce’s Failure to Issue the Final Results Within the R equired

Statutory Time Period Does Not Render Them V oid A b Initio 1. Contentions of the Parties B o Asia et al. and Hontex complain that Commerce’s Fina l Results are void ab initio because Commerce failed to issue them within the time frame required by the antidumping duty statute and its implementing regulations. See Bo Asia’s Br. at 13-17; Hontex’s Mem. at 24-26. Pursuant to 19 U.S.C. § 1675(a)(3)(A) (1994) and 19 C.F.R. § 351.213(h)(1) (1999), Commerce was required to issue the F inal Results on February 8, 2001. 14 See Hontex’s Mem . at 24 . Rather than extend the deadline for the issuance of the Final Results , pursuant to 19 U.S.C. § 1675(a)(3)(A) and 19 C.F.R. § 351.213(h)(1), Commerce issuedthe Final Results on April 11, 2001, which was two months after the deadline passed. See Hontex’s Mem. at 24. Hontex maintains that its counsel called Commerce to inquire whether an extension for the issuance of the Final Results had been formally issued and did not receive a response. See id.

Bo Asia et al. assert that the Statement of Adm ini strative Action (“SAA”) accompanying H.R. 5110, H.R. Doc. No. 316, Vol. 1,Consol. CourtNo. 02-00376 Page 52

103dCong., 2d Ses s., at 815 (1994), clearly indicates Congress’ intention “to issue a mandate regarding deadlines to [Commerce] to prevent the dilatory style that was so problematic in pre-Uruguay Roundadministrative review.” Bo Asia’s Br. at 16. Hontex and Bo Asia et al. co ntend that Commerce wilfully violated the statute andshould be held accountable. See id. 16-17; Hontex’s M em. a t 25-26. Bo Asia et al. argue that “[u]nless this Court acts now to enforce th e sta tutory and regulatory timetable, the procedural gains of the Uruguay Round will be lost, Congress’ mandate will be contravenedand pa rtie s will find themselves back in pre-Uruguay Roundposture . . . .” Bo Asia’ s Br. at 16. Accordingly, the Final Re sults should be voided in order to “send a clear sig na l that deadlines have a meaning, and the willful failure to meet statutory deadlines has consequences.” Hontex’s Mem. at 26.

Commerce responds that its failure to meet the statutory deadline for the issuance of the Final Results does not render the results void ab initio . See Commerce’s Mem. at 46-48. Commerce points out that no statute “establishes a con sequen ce or penalty for i ssuing the final results after 120 days.” Id. at 47. Consequently, the deadline imposed by the statute is directory and not mandatory. See id. Commerce maintains that the publication of the Final Results after the deadline’s expiration does not render them void ab initio . See id.Consol. CourtNo. 02-00376 Page 53

2. Analysis Section 167 5(a)(3 )(A) of Title 19 of the United States Code provides that Commerce issue its final re sults “within 120 days after the date on which the prel iminary determination is published.” Under the statute, Commerce may extend the 120 day periodto 180 days if it is not practicable to complete the review within the 120 day time frame. Hontex and Bo Asia et al. point out that Commerce did not meet the 120 day deadline and failed to extendthe deadline to 180 days. The Court finds that the statute is directory and not mandatory. Whil e the statute uses the word “shall,” which generally suggests mandatory action, se e Es coe v. Zerbst , 295 U.S. 490, 493 (1935), a time period provided for in a statute “is not mandatory unless it both expressly requires an agency or public official to act within a particular time period andspecifies a consequence for failure to com ply with the provision.” Alberta Gas Chemicals, Inc. v. United States , 1 CIT 312, 315-16, 515 F. Supp. 780, 785 (1981) (citations omitted). Commerce should not shirk its duty to meet statutory deadlines and shouldstrive to carry out the mandate codified in 19 U.S.C. § 1675(a)(3)(A). Nonetheless, there is no statutory consequence for Commerce’s failure to comply in a timely fashion. Even though Commerce issued the Final Results after the deadline expired, they are not void ab initio .Consol. CourtNo. 02-00376 Page 54

VIII. Commerce Properly Determined that Fujian and Pacific

Coast are not Affiliated Parties 1. Contentions of the Parties Bo Asia et al. complain Commerce improperly determined tha t Fujian and Pacific Coast are not affiliated parties. See Bo Asia’s Br. at 17-22. Bo Asia et al. argue that there was ample evidence

on the record indicating that Fujian owned a significant percentage of Pacific Coast. See id. at 17. Fujian submitted to Commerce: (a) a copy of the memorandum of understanding between Fujian and Pacific Coast reflecting an agreement whereby Fujian was to acquire shares of Pacific Coast; ( b) the promissory note signed as consideration for the acquisition of shares in Pacific Coast; and, (c) an explanati on t hat its investment was made in the form of merchandise which was sold and the proceeds of which were deposited in Pacific Coast’s account as payment upon the promissory note. See id. at 17- 18. Nonetheless, Commerce found that there was no recordevidence showing that Fujian had acquired a ny of Pacific Coast’s equity. S ee id. at 18. The promissory note under Washington State law, the venue where the sale took place, can serve as adequate consideration for equity ownership. See id.

Bo Asia et al. maintain that Commerce did not reference the pro misso ry note, which “is the principal instrument evidencing Fujian Pelagic’s purchase o f corporate shares; [and] any determination without its consideration is by definitionConsol. CourtNo. 02-00376 Page 55

unsupportedby substantial evidence on the record and otherwise not in accordance with law.” Id. at 18-19. Commerce’s focus on whether Fujian actually paid Pacific Coast for the corporate shares is misplaced. See id. at 19. Under Washington law, the transfer of stock ownership would be deemed to occur once the promissory note was executed, and“[t]he fact that Fujian Pelagic did in fact make a payment in the form of the delivery o f me rchandise only substantiates further the veracity of the acquisition.” Id. Bo Asia et al. contend that in Commerce’s view all corporate shares must be pu rch ased in cash even though Washington law recognizes that “shares are acquired by many means [] other than cash investment.” Id. at 20. Commerce equated Fujian’s shares in Pacific Coast with the amount it paid to Pacific Coast during the POR. See id. Instead, Commerce should have based Fujian’s ownership interest on the full amount it was obligated to pay under the terms of the promissory note. See id. Commerce chose not to verify Pacific Coast’s records and did not reque st f urther documentation of the arrangements between Pacific Coast and Fujian. Consequently, Fujian’s responses to Commerce’s questionnaire stating its acquisition of a percentage of Pac ific C oast, “along with submission of the promissory no tes an d the memorandum of understanding, should be s uffi cient to establish the acquisition absent contradictory evidence on the record, whi ch in this case, there is not.” Id. at 21.Consol. CourtNo. 02-00376 Page 56

If the Court finds that the two companies are not affiliated by virtue of common ownership, Bo Asia et al. alternatively argue that the companies are affiliated pursuant to 19 U.S.C. § 1677(33)(G) (1994). See Bo Asia’s Br. at 21. The statute provides for the finding of an affiliation between persons when one controls another person. See id. Fujian’s president and general manager

serves as the vice president of Pacific Coast, and each of Fujian’s shareholders is a membe r o n Pacific Coast’s Board of Directors. See id. at 22. Conseque ntl y, Fujian “is involved in all key decision making ma tter s of Pacific Coast,” and exercises control over the management of Pacific Coast. Id.

B. Commerce’s Contentions Commerce replies that it properly determined that Fugian and Pacific Coast are not affili ate d because there was no record evidence indicating potential control or ownership between the two entities. See Commerce’s Mem. at 48-53. Commerce argues that it properly t rea ted Fujian’s sales to the United States “as export price [] sales because the first sales were made to unaffiliated purchasers prior to importation, and c onst ructed export price []

was not otherwise warranted.” Id. at 48. Pursuant to 19 U.S.C. § 1677(33), Commerce considered whether Fujian’s investment in Pacific Coast amounted to five percent of the total shares of Pacific Coast. See id. at 50. Commerce argues that there was no recordevidence demonstrating a transf er of investment throughConsol. CourtNo. 02-00376 Page 57

money or merchandise between the two companies. See id. at 49-50. Bo Asia et al.’s statement that the promissory note is ample consideration for the issuance of corporate shares is misplaced because Commer ce “ap plies the antidumping duty law, and under 19 U.S.C. § 1677(33), Fujian Pelagic ha s fail ed to demonstrate that there was any investment in Pacific [Coast] or that these two companies are affiliated in any other way.” Id. at 51. Fujian failedto provide documentation illust rating that it had paid in capital to Pacific Coast before or during the POR; “[t]he only documentation subm itted by Fujian Pelagic et al. that relates to Fujian Pelagic’s claimed investment in P acific Coast is the sale fromPacific Coast to a seafood broker in the United States.” Id. (quoting Issues & Decision Mem. at 51). Commerce asserts that Bo Asia et al. has the burden of creating a complete and accu rate record and failed to do so in this review. See id. at 52.

Commerce also contends that Bo Asia et al . f ailed to adequately establish that Fujian controls Pacific Coast. Commerce could not “determine that one person was legally or operationally in control of Fujian Pelagic and Pacific Coast because Bo Asia, et al. failed to provide any evidence concerni ng the role and responsibilities that the one individual hadas both the president of Fujian Pelagic and the vice president of Pacific Coast.” Id. at 50-51. Commerce points out that the record indicates that a personConsol. CourtNo. 02-00376 Page 58

unaffiliatedwith Pacific Coast served as treasurer. See id. at 52. Finally, the evidence does not support a determination that Fujian and Pacific Coast are affiliated. 2. Analysis The Court finds that Commerce properly determined that Fujian andPacific Coast are not affiliated parties under th e relevant statutes. Section 1677(33) of Title 19 of the United States Code defines “affiliated persons” as:

(B) Any officer or director of an organization and such organization.

. . . (E) Any person directly or indirectly owning, controlling, or holding with power to vote, 5 percent or more of the outstanding voting stock or s har es of any organization and such organization. (F) Two or more pe rsons directly or indirectly controlling, controlled by, or under common control with, any person.

. . . a person shall be considered to control another person if the person is legally or operationally in a position to exercise restraint or direction over the other person. Bo Asia et al. argue that Fujian owns more than five percent of Pacific Coast, rendering the two companies affiliated pursuant to 19 U.S.C. § 1677(33)(E). In its review, Commerce requested Fujian “provide any documentation to demonstrate that it had actually paid in capital to Pacific Coast prior to or during the POR.” See Issues & De cision Mem. at 51. Fujian subsequently submittedConsol. CourtNo. 02-00376 Page 59

documents demonstrating a sale f rom Pacific Coast to a United States seafood broker. See id. Fujian’s submission included (a) the invoice/packing list from Pacific Coast; (b) a purchase order fromthe seafood broker to Pacific Coast; and (c) proof of payment from the seafood broker to Pacific Coast. See id. Fujia n h as the burden of producing a complete and accurate record. See Zenith Elecs. Corp. v. United States , 988 F.2d 1573, 1583 (Fed. Cir. 1993). Fujian’s submissions, howev er, do not sufficiently demonstrate that the merchandise sold by Pacific Coast originatedfrom Fujian. Commerce reasonably determined that “there is no documented connection which ties [the sale from Pacific Coast to the seafood broker] to the shipment from Fujian Pelagic that purportedly represents Fujian Pelagic’s investment in Pacific Coast.” Issues & Decision Mem. at 52. Bo Asia et al. alternatively argue that Fujian and Pacific Coa st are affiliated because of their common control. While the record indicates that Fujian’s president and gene ral manager is also vice-president of Pacific Coast, there is no evidence depicting the duties of Pacific Coasts vice-president. Without such evidence, Commerce reasonably determinedthat it could not evaluate how much, if any, control Fujian exerted over Pacific Coast. The Court finds that Commerce reasonably determined that Fujian had not made an investment, whether in cash or in the form of a promissory note, in PacificConsol. CourtNo. 02-00376 Page 60

Coast and that Fujian did not exercise control over Pacific Coast.

IX. Commerce Properly Applied Facts Available to Qingdao Zhengri and Yaou 1. Contentions of the Parties Bo Asia et al. complain that Com mer ce erred in applying adverse facts available to Qingdao Zhengri and Yaou. See Bo Asia et al.’s Mem. at 22-27. Qingdao Zhengri and Yaou submitted a consolidatedresponse to sections C and D of Commerce’s questionnaire. See id. at 22. While Qingdao Zhengri informed Commerce that it would not participate in a verification of its questionnaire responses, Yaou indicated that it would participate in such verification. See id. at 23. Commerce subsequently determinedthat the consolidated questionnaire responses could not be verified because Qingdao Zhengri would not permit verification of its responses. See id. Consequently, Commerce applied adverse facts available to Qingdao Zhengri and Yaou which resulted in a PRC-wide rate for all of Yaou’s subject sales. See id. Bo Asia et al. assert that adverse facts available should not be applied to Yaou because it acted to the best of its ability to cooperate with Commerce. See id. Yaou did not wilfully withhold information from Commerce and respondedto all the questionnaires and requests made by Commerce. See id. Yaou offered Commerce all of its company books and records at verification and provided Commerce all of itsConsol. CourtNo. 02-00376 Page 61

sales and FOP information. See id.

Bo Asia et al. assert tha t unde r the relevant statute Commerce must meet a high standard befor e it can take an adverse inference. See id. at 23-24. Commerce may take such an inference “only where if can determine that an interested part[y] has ‘failed to cooperate by not acting to the best of its ability to comply with a request for information by [Commerce].” Id. at 24 (quoting 19 U.S.C. § 1677e(b) (1994). In addition, Commerce must first find willful misconduct before applying an adverse inference. See id. Co mmerce’s determination must be made through a reasoned inqu ir y andsupported by substantial evidence. See id. Bo Asia et al. maintain Commerce should have applied neu tral facts available to approximate Yaou’s dumping rate because Commerce did not provide a reasonedanalysis and its determination that Yaou did not act to the best of its ability was not based on substantial evidence. See id. at 25.

Commerce responds that it was proper to apply a PRC-wide rate to Qingdao and Yaou. See Commerce’ s Mem. at 53-56. Commerce argues that its inability to verify the questionnaire responses submittedby Qingdao Zhengri and Yaou justified the application of adverse facts available to Yaou. See id. at 53. Commerce found that the two companies constituted a single entity, and that since

one refused to submit to verification Commerc e c ould not verifyConsol. CourtNo. 02-00376 Page 62

only part of the consolidated response. See id. at 53-54. Commerce could not determi ne t he veracity of the information submitted by Qingdao Zhengri and Yaou because it could not verify such information. See id. at 54. Under the relevant statute, the application of adverse facts available is warranted when Commerce cannot verify the information provided. See id. Commerce also asserts that it reasonably determined that Yaou failed to cooperate

on account of Qingdao Zhengri’s refusal to participate in verification. Since Commerce considered Qingdao Zhengri and Yaou to be a single entity, it “could not verify part of the entity and assign a separate antidumping margin for Yaou.” Id. Commerce maintains that Yaou did not challenge the collapsing of the two entities and that it prope rly applied adverse facts available to Qingdao Zhengri and Yaou. See id. 2. Analysis The Court finds Bo A sia et al.’s argument, that Commerce unjustifiably applied adverse facts available to Qingdao Z heng ri and Yaou, has no merit. Under section 1677e(a)(2) of Title 19 of the United States Code, Commerce shall use “facts otherwise available” when “(1) necessary information is not available on the record, or (2) an interested party or any other person —(A) withholds information that has been requested . . . or (D) provides such information but the information cannot be verified . . . i n reaching the applicable determination under this subtitle.” 19Consol. CourtNo. 02-00376 Page 63

U.S.C. § 1677e(a). The antidumping duty statute mandates that Commerce use “facts otherwise available” (commonly referred to as “facts available”) if “necessary information is not avai labl e on the record” of an antidumping proceeding. See 19 U.S.C. § 1677e(a)(1). Furthermore, if Commerce determines that “an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information . . . [then Commerce] may use

an inference that is adve rse to the interests of that party in selecting from among the facts otherwise available.” 19 U.S.C. § 1677e(b). Commerce may a pply facts available when it determines that an interested party withholds requested information or fails to cooperate with a reques t for information. See 19 U.S.C. § 1677e(a) & (b). The legislative goal behind Commerce’s right to use facts available is to “induce respondents to provide Commerce with requested information in a tim ely, complete, and accurate

manner . . . .” National Steel Corp. v. United States , 18 CI T 1126, 1129, 870 F. Supp. 1130, 1134 (1994). Consequently, Commerce enjoys broad, although not unlimited, discretion with regard to the propriety of its use of facts available. See generally , Olympic Adhesives Inc. v. United States , 899 F.2d 1565 (Fed. Cir. 1990) (acknowledging Commerce’s broad discretion to use facts available, but pointing out that Commerce's resort to facts available is anConsol. CourtNo. 02-00376 Page 64

abuse of dis cret ion where the information Commerce requests does not and could not exist).

The Court finds Commerce’s rationale for resorting to adverse facts ava ilable convincing and reasonable. During the subject review, Qingdao Zheng ri and Yaou reported to Commerce that their responses to Commerce’s questionnaire reg arding volume and value information would be consolidated because the two companies shared

a common owner. See Issues & Decision Mem. at 52. Qingdao Zhengri informedCommerce that it would not par tici pate in verification. See id. Commerce informed both companies that, based on Qingdao’s refusal to submit to verification, Commerce could not verify only part of the consolidated responses. See id. at 55. Com merce indicatedto the companies that “if a company objects to verification, [Commerce] will not con duct verification and may disregardany or all information submitted by the company in favor of the use of facts available . . . .” Id. Yaou was provided with notice that adverse facts available would be used by Commerce, yet Yaou failed to contact or arrange verification with Commerce. Co mmerce reasonably concluded that its inability to verify th e questionnaire responses was a result of Yaou’s failure to cooperate with Commerce. See 19 U.S.C. § 1677e(a) & (b). Cons eque ntly, Commerce pr oper ly applied adverse facts available and a PRC-wide rate to Qingdao Zhengri and Yaou.Consol. CourtNo. 02-00376 Page 65

15 The Byrd Amendment was enacted after the publication of the Final Results as part of the Agricultural, Rural Development, Foodand Drug Administr atio n, and Related Agencies Appropriation Act, 2001. See Title X of H.R. Bill 4461.

16 The UnitedStates Customs Service was renamed the Bureau of Customs and Border Protection of the Department of Homeland Security, effective March 1, 2003. See H.R. Doc. No. 108-32 (2003). X. Payment of Dumping Duties to the Domestic Crawfish Industry 1. Contentions of the Parties Bo Asia et al. contend that the Continued Dumping and Subsidy Offset Act of 2000 (the “Byrd Amendment”) 15 transformed the antidu mping law into a “penal” statute and conferred upon United States entities, which are importers, full “due process rights.” See Bo Asia’s Br. at 30-36. The Byrd Amendment provides tha t antidumping and countervailing duties collected on or after October 1, 2000, by the UnitedStates Customs Service 16 shall be distributed to affected domestic parties on an annual basis. See id. at 32. Bo Asia et al. assert that under the Byrd Amendment “the amount collectedis no longer ‘an additional duty,’ it is a penalty.” Id. at 32-33. The Byrd Amendment, rather than equaliz e c ompetitive conditions in the United States, shifts revenue from importers to the domestic industry and un dermin es the remedial purpose of the antidumping duty statute. See id. at 33. Bo Asia et al. assert that “[d]istributing the collected duties to domestic petitioners is tantamount to penalizing the foreign producers and/or exportersConsol. CourtNo. 02-00376 Page 66

by providing a s ubs idy to their direct competitors.” Id. Accordingly, Commerce’s actions during the review at issue violates the United States Consti t ution because the United States respondents were not afforded thei r fu ll due process rights, including a hearing by a neutral judge, before the imposition of antidumping duties. See id. at 33-35.

C ommerce responds that Bo Asia et al.’s argument is w ithou t any merit. See Commerce’s Mem. at 55. Commerce points out that the CAFC held tha t “the Byrd Amendment in no way alters the

re sponsibilities of Commerce, the Byrd Amendment did not conv er t the antidumping statute into a penal statute . . . .” Id. (citing Huaiyin Foreign Trade Corp. (30) v. United States , 322 F.3d 1369, 1379-1380 (Fed. Cir. 2003)). Accordingly, Commerce contends that the Byrd Amendment “did not confer up on Bo Asia et al. the constitutional protection of the Fifth Amendment or necessitate a hearing by a neutral judge before dumping duties may be imposed.” Id. 2. Analysis The Court finds that Bo Asia et al.’s argument is without merit. The CAFC has held that the Byrd Amendment does not change the nature of the antidumping duty statute because it does not impose a penalty. See Huaiyin , 322 F.3d at 1379-1380. The duties imposed“remain proportional to the amount of harm caused by theConsol. CourtNo. 02-00376 Page 67

anticompetitive conduct.” Id. at 1380. Consequently, the duties assessedpursuant to the Byrd Amendment are identical to those assessedprior to its passage. Se e id. T he Byrd Amendment enha nces rather than detracts from the remedial nature of th e antidump ing duty statute because “[t]he duties now bear less resemblance to a fine payable to the government, and look more like compe nsa tion to victims of anticompetitive behaviors.” Id. Pursuant to the CAFC’s holding, the Court finds that the Byrd Amendment did not confer upon United States importers the

cons titut ional protections of the Fifth Amendment, including a hearing before a neutral judge, before Commerce may impose dumping duties.

The Court has considered all other arguments raised by CPA and Plaintiffs/Defendant-Intervenors and finds them without merit.

CONCLUSION This case is remanded to Commerce with instructions t o ( 1) include the submissions made by Hontex on March 19, 2002, and March 20, 2002, as part of the administrative record and explain what bearing, if any, these submissions have on Commerce’s final determination; and (2) sufficiently articulate (a) why its collapsing met hodo logy for NME exporters is a permissible interpretation of the antidumping duty st atute; and, (b) why itsConsol. CourtNo. 02-00376 Page 68

findings warrantedthe collapsing of Jiangsu and Nanlian. Commerce is affirmed in all other aspects.

/s/ Nicholas Tsoucalas NICHOLAS TSOUCALAS SENIOR JUDGE

Dated: May 6, 2004

New York, New York