Slip Op. 19-83

 

UNITED STATES COURT OF INTERNATIONAL TRADE 

THUAN AN PRODUCTION TRADING AND 

SERVICE CO., LTD. and GOLDEN QUALITY 

SEAFOOD CORPORATION, 

 Plaintiff and Consolidated Plaintiff, 

v. 

UNITED STATES, 

 Defendant. 

and 

CATFISH FARMERS OF AMERICA ET AL., 

 Defendant-Intervenors and 

Consolidated Defendant Intervenors. 

 Before: Claire R. Kelly, Judge 

 Consol. Court No. 17-00056 

OPINION 

[Sustaining the U.S. Department of Commerce’s redetermination.] 

 Dated: July 8, 2019 

Matthew Jon McConkey, Mayer Brown LLP, of Washington, DC, for plaintiff Thuan An 

Production Trading and Service Co., Ltd. 

Andrew Brehm Schroth, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of Hong 

Kong, S.A.R., and Jordan Charles Kahn, Grunfeld Desiderio Lebowitz Silverman & 

Klestadt, LLP, of Washington, DC, for consolidated plaintiff Golden Quality Seafood 

Corporation. 

Kara Marie Westercamp, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice, of Washington, DC, for defendant. With her on the brief were 

Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia 

M. McCarthy, Assistant Director. Of Counsel was Kristen McCannon, Attorney, Office of 

the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of 

Commerce, of Washington, DC. 
Consol. Court No. 17-00056 Page 2 

Jonathan M. Zielinski and James R. Cannon, Jr. of Cassidy Levy Kent (USA) LLP, of 

Washington, DC, for defendant-intervenors and consolidated defendant-intervenors 

Catfish Farmers of America; America’s Catch; Alabama Catfish Inc.; Consolidated Catfish 

Companies LLC; Delta Pride Catfish, Inc.; Guidry’s Catfish, Inc.; Heartland Catfish 

Company; Magnolia Processing, Inc.; Simmons Farm Raised Catfish, Inc. 

Kelly, Judge: before the court is the U.S. Department of Commerce’s (“Commerce” 

or “the Department”) remand redetermination pursuant to the court’s decision in Thuan 

An Production Trading and Service Co., Ltd. v. United States, 42 CIT __, 348 F. Supp. 

3d 1340 (2018) (“Thuan An”). See Final Results of Redetermination Pursuant to Thuan 

An Production Trading and Service Co., Ltd. v. United States, Consol. Court No. 17-

00056 (November 5, 2018), Apr. 1, 2019, ECF No. 74-1 (“Remand Results”). In Thuan 

An, the court remanded Commerce’s assignment of the Vietnam-wide rate to Thuan An 

Production Trading and Service Co., Ltd. (“Tafishco”) in the twelfth administrative review 

of the antidumping duty (“ADD”) order covering certain frozen fish fillets from the Socialist 

Republic of Vietnam (“Vietnam”). See Thuan An, 42 CIT at __, 348 F. Supp. 3d at 1354–

55; see also Certain Frozen Fish Fillets from [Vietnam], 82 Fed. Reg. 15,181 (Dep’t 

Commerce Mar. 27, 2017) (final results and partial rescission of [ADD] administrative 

review; 2014–2015) (“Final Results”) and accompanying Certain Frozen Fish Fillets from 

[Vietnam]: Issues and Decision Memorandum for the Final Results of the Twelfth [ADD] 

Administrative Review; 2014–2015, A-552-801, (Mar. 20, 2017), ECF No. 25-2 (“Final 

Decision Memo”). Specifically, although the court confirmed that “Commerce may apply 

a statutorily authorized rate” to a nonmarket economy (“NME”) entity, the court rejected 

Commerce’s application of something called “a single country-wide rate,” Thuan An, 42 

CIT at __, 348 F. Supp. 3d at 1348 (quoting Def.’s Resp. Pls.’ Mots. J. Agency R. at 12, 
Consol. Court No. 17-00056 Page 3 

Apr. 20, 2018, ECF No. 55), a rate that is not an individual rate or an all-others rate. Id., 

42 CIT at __, 348 F. Supp. 3d at 1347 (citing Def.'s Supplemental Br. Resp. Ct.’s July 25, 

2018 Order at 1, Aug. 30, 2018, ECF No. 67 (“Def.’s Supplemental Br.”)). The court 

therefore found Commerce’s asserted legal authority for the Vietnam-wide rate contrary 

to law. On remand, Commerce reconsidered its authority to impose an NME-entity rate 

and “acknowledges that the NME-entity rate in the underlying investigation was an 

individually investigated rate.” Remand Results at 5. Because Commerce complied with 

the court’s order in Thuan An and its determination is in accordance with law, the court 

sustains Commerce’s Remand Results. 

BACKGROUND 

 The court assumes familiarity with the facts of this case as set out in the previous 

opinion ordering remand to Commerce and now recounts the facts relevant to the court’s 

review of the Remand Results. See Thuan An, 42 CIT at __, 348 F. Supp. 3d at 1343–

45. On March 27, 2017, Commerce published the final results of the twelfth administrative 

review of the ADD order covering certain frozen fish fillets from Vietnam. See Final 

Results, 82 Fed. Reg. 15,181. Commerce determined, inter alia, that mandatory 

respondents Tafishco and Golden Quality Seafood Corporation (“Golden Quality”) failed 

to demonstrate eligibility for a separate rate,1 and Commerce assigned both respondents 

 

1 For NME countries, Commerce employs a rebuttable presumption that all companies within the 

NME are subject to government control and should therefore be assigned a single antidumping 

rate. See Certain Frozen Fish Fillets from [Vietnam], 81 Fed. Reg. 64,131 (Dep’t Commerce 

Sept. 19, 2016) (preliminary results and partial rescission of the [ADD] administrative review; 

(footnote continued) 
Consol. Court No. 17-00056 Page 4 

the Vietnam-wide rate of $2.39 per kg.2 Final Decision Memo at 11,15; see also Final 

Results, 82. Fed. Reg. at 15,182. 

 Tafishco and Golden Quality commenced separate actions pursuant to section 

516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) 

(2012)3 before this court, which were later consolidated. See Summons, Mar. 31, 2017, 

ECF No. 1; Compl., Apr. 5, 2017, ECF 8; Order, July 26, 2017, ECF No. 28 (consolidating 

 

2014–2015) (“Preliminary Results”) and accompanying Certain Frozen Fish Fillets from [Vietnam]: 

Decision Memorandum for the Preliminary Results of the 2014–2015 [ADD] Administrative 

Review at 7, A-552-801, (Sept. 6, 2016), available at 

https://enforcement.trade.gov/frn/summary/vietnam/2016-22386-1.pdf (last visited July 2, 

2019) (“Preliminary Decision Memo”). Commerce considers Vietnam an NME country, and 

treated it as such for this review. Preliminary Decision Memo at 6. Commerce’s policy is to assign 

all exporters of the subject merchandise in the NME country a single rate, unless the exporter can 

prove its independence from the government. Id. at 7; see also 19 C.F.R. § 351.107(d). Here, 

Commerce found that Tafishco and Golden Quality failed to qualify for a separate rate because 

they opted not to participate in the review. See Preliminary Decision Memo at 1; Final Decision 

Memo at 11. Although Golden Quality submitted a separate-rate certification, Commerce found 

that Golden Quality’s decision not to participate in the review precluded the granting of a separate 

rate. See Final Decision Memo at 14 (quoting Initiation of Antidumping and Countervailing Duty 

Administrative Reviews, 80 Fed. Reg. 60,356, 60,358 (Dep’t Commerce Oct. 6, 2015)).

2 The current Vietnam-wide entity rate was established in the final results of the tenth 

administrative review. See Certain Frozen Fish Fillets from [Vietnam], 79 Fed. Reg. 40,059 (Dep’t 

Commerce July 11, 2014) (preliminary results of the [ADD] administrative review; 2012–2013) 

and accompanying Certain Frozen Fish Fillets from [Vietnam]: Decision Mem. for the Prelim. 

Results of the 2012–2013 [ADD] Administrative Review at 8–12, A-552-801, (July 2, 2014), 

available at https://enforcement.trade.gov/frn/summary/vietnam/2014-16311-1.pdf (last visited 

July 2, 2019) (“AR10 Preliminary IDM”) (unchanged in final determination). There, Commerce 

found that the Vietnam-wide entity failed to cooperate to the best of its ability with the investigation 

and assigned the Vietnam-wide entity a rate based on total adverse facts available (“AFA”). AR10 

Preliminary IDM at 8–11. Parties and Commerce sometimes use the shorthand “adverse facts 

available” or “AFA” to refer to Commerce’s reliance on facts otherwise available with an adverse 

inference to reach a final determination. However, AFA encompasses a two-part inquiry pursuant 

to which Commerce must first identify why it needs to rely on facts otherwise available, and 

second, explain how a party failed to cooperate to the best of its ability as to warrant the use of 

an adverse inference when “selecting among the facts otherwise available.” See 19 U.S.C. 

§ 1677e(a)–(b); 19 C.F.R. § 351.308(a)–(c).

3 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title 19 

of the U.S. Code, 2012 edition.
Consol. Court No. 17-00056 Page 5 

Court No. 17-00056, Court No. 17-00087, and Court No. 17-00088 under Court No. 17-

00056).4 Tafishco argued, inter alia, that Commerce lacked statutory authority to issue 

the Vietnam-wide NME rate in the twelfth administrative review. See Mem. Law Supp. 

Pl.[’]s Rule 56.2 Mot. J. Agency R. at 3–7, Nov. 16, 2017, ECF No. 42 (“Tafishco’s Br.”). 

Tafishco contended that 19 U.S.C. § 1673d only contemplates two types of rates, and 

that the Vietnam-wide rate applied by Commerce was not a rate authorized by statute. 

Id. Defendant, the United States, argued that the Vietnam-wide rate was lawful because 

Commerce has authority to establish a third type of rate, i.e., an NME-entity rate or 

country-wide rate, pursuant to 19 C.F.R. § 351.107(d),5 and that Commerce does not 

view this country-wide rate as either an individual rate or an all-others rate. See Def.’s 

Supplemental Br. at 2 (citing 19 C.F.R. § 351.107(d) and Sigma Corp. v. United States, 

117 F.3d 1401, 1405–06 (Fed. Cir. 1997)); see also 19 U.S.C. § 1673d(c). 

The court remanded the matter, holding that on the legal grounds proffered by the 

Department, Commerce’s assignment of the Vietnam-wide rate to Tafishco was contrary 

to law. Thuan An, 42 CIT at __, 348 F. Supp. 3d at 1347–51, 1354–55. The court 

explained that because Commerce asserted that the Vietnam-wide rate applied was 

something other than one of the two statutorily authorized rates, Commerce’s 

determination could not stand. Id. at 1347. The court specifically noted that its holding 

had no effect on Commerce’s ability to assign a single dumping margin to all entities in 

 

4

 Court No. 17-00087 was later severed and stayed. See Memorandum and Order, Nov. 14, 

2017, ECF No. 40. 

5 19 C.F.R. § 351.107(d) pertains to “Rates in antidumping proceedings involving [NME] 

countries,” and provides that “[i]n an antidumping proceeding involving imports from a [NME] 

country, ‘rates’ may consist of a single dumping margin applicable to all exporters and producers.” 
Consol. Court No. 17-00056 Page 6 

an NME country, so long as the rate assigned is one authorized by statute. Id. at 1347–

48. 

On remand, Commerce maintains that it has statutory authority pursuant to 19 

U.S.C. § 1675(a) to assign the Vietnam-wide rate to Tafishco in this review. Remand 

Results at 1. Nonetheless, Commerce now “acknowledges that the NME-entity rate in 

the underlying investigation was an individually investigated rate.” Id. at 5. Further, 

Commerce explains that the Vietnam-wide rate was set in the original antidumping 

investigation using facts available with an adverse inference, that it was revised in the 

tenth administrative review when Commerce reviewed the NME entity, and that it was this 

rate that Commerce applied to Tafishco. Id. at 5–6, 8. 

JURISDICTION AND STANDARD OF REVIEW

The court exercises jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 

U.S.C. § 1581(c) (2012), which grant the Court authority to review actions contesting the 

final determination in an administrative review of an ADD order. “The court shall hold 

unlawful any determination, finding, or conclusion found . . . to be unsupported by 

substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. 

§ 1516a(b)(1)(B)(i). “The results of a redetermination pursuant to court remand are also 

reviewed ‘for compliance with the court’s remand order.’” Xinjiamei Furniture 

(Zhangzhou) Co. v. United States, 38 CIT __, __, 968 F. Supp. 2d 1255, 1259 (2014) 

(quoting Nakornthai Strip Mill Public Co. v. United States, 32 CIT 1272, 1274, 587 F. 

Supp. 2d 1303, 1306 (2008)). 
Consol. Court No. 17-00056 Page 7 

DISCUSSION 

 On remand, Commerce maintains that it has statutory authority to apply the 

Vietnam-wide rate to Tafishco. Remand Results at 1–2. Golden Quality argues that 

Commerce’s remand redetermination does not comply with the court’s instruction in 

Thuan An and should thus be remanded because Commerce acknowledges that the 

Vietnam-wide rate assigned in the twelfth administrative review “was neither an individual 

rate nor an all others rate,” but rather “a rate calculated for the Vietnam-wide entity years 

ago in the tenth administrative review and carried forward” to the twelfth review. Consol. 

Pl.’s Comments on Commerce’s Remand Redetermination at 1–2, May 1, 2019, ECF No. 

77 (“Golden Quality’s Comments”). For the reasons that follow, Commerce’s Remand 

Results comply with the court’s order in Thuan An, are in accordance with law, and are 

thus sustained. 

 When Commerce makes a final determination that subject merchandise is being, 

or is likely to be, sold in the United States at less than its fair value, and the International 

Trade Commission finds that the domestic industry is being injured or threatened with 

injury as a result of the dumping, Commerce imposes an ADD. See 19 U.S.C. § 

1673d(c)(2). Upon an affirmative determination of dumping, the statute requires that 

Commerce “determine the estimated weighted average dumping margin for each exporter 

or producer individually investigated,” and determine an “estimated all-others rate for all 

exporters and producers not individually investigated.” 19 U.S.C. § 1673d(c). The statute 

thus contemplates two types of rates: rates for producers and exporters individually 
Consol. Court No. 17-00056 Page 8 

investigated, and the all-others rate for producers and exporters not individually 

investigated. 

Previously, Commerce had not “stated expressly under what provision . . . the NME 

entity-wide rate was authorized.” Remand Results at 5; see also Final Decision Memo. 

Commerce’s regulations provide that in ADD proceedings involving an NME country, 

“‘rates’ may consist of a single dumping margin applicable to all exporters and producers.” 

19 C.F.R. § 351.107(d). Commerce assigns all producers and exporters from the NME 

country a single rate, unless a company demonstrates its independence from the state. 

See Remand Results at 2; see also Sigma Corp. v. United States, 117 F.3d 1401, 1405–

06 (Fed. Cir. 1997) (upholding Commerce’s application of a rebuttable presumption of 

state control in NME proceedings). 

In this case, when asked specifically by the court whether the rate was either an 

individually investigated rate or an all-others rate, Defendant answered that Commerce 

“does not treat the Vietnam-wide rate as an individual rate or as an ‘all-others’ rate.” Def.’s 

Supplemental Br. at 1. The court explained in Thuan An that although Commerce “has 

broad authority to interpret the antidumping statute and devise procedures to carry out 

the statutory mandate,” it must reasonably ground its actions in statutory authority. Thuan 

An, 42 CIT at __, 348 F. Supp. at 1351 (quoting Sigma Corp., 117 F.3d at 1405). 

On remand, Commerce “acknowledges that the NME-entity rate in the underlying 

investigation was an individually investigated rate.” Remand Results at 5. Commerce’s 

explanation complies with the court’s order in Thuan An. Characterizing the Vietnamwide rate as an individually investigated rate reasonably grounds Commerce’s 
Consol. Court No. 17-00056 Page 9 

determination in statutory authority. See 19 U.S.C. § 1673d(c). The rate was originally 

determined in the final determination of Commerce’s less than fair value investigation, 

during which Commerce “individually investigated” the Vietnam entity.6 See Certain 

Frozen Fish Fillets from [Vietnam], 68 Fed. Reg. 37,116 (Dep’t Commerce June 23, 2003) 

(notice of final [ADD] determination of sales at less than fair value and affirmative critical 

circumstances). Commerce later revised the rate in the tenth administrative review after 

reviewing the Vietnam entity. See Certain Frozen Fish Fillets from [Vietnam], 80 Fed. 

Reg. 2,394, 2,395 (Dep’t Commerce Jan. 16, 2015) (final results of [ADD] administrative 

review; 2012–2013).7 

 Golden Quality argues that Commerce’s explanation does not comply with the 

court’s remand instruction in Thuan An because the Vietnam-wide rate was neither an 

individual rate nor an all-others rate in this review, but instead was calculated for the 

Vietnam entity in a prior review and “carried forward.” Golden Quality’s Comments at 1–

 

6

 Commerce determined the Vietnam-wide rate using facts available with an adverse inference. 

See Certain Frozen Fish Fillets from [Vietnam], 68 Fed. Reg. 37,116, 37,120 (Dep’t Commerce 

June 23, 2003) (notice of final [ADD] determination of sales at less than fair value and affirmative 

critical circumstances); see also 19 U.S.C. § 1677e. 

7

 Under Commerce’s former practice, Commerce would review the NME entity in any review 

where an exporter seeking a separate rate was unable to demonstrate its independence from the 

NME entity. See, e.g., Certain Frozen Fish Fillets from [Vietnam], 79 Fed. Reg. 40,059 (Dep’t 

Commerce July 11, 2014) (preliminary results of the [ADD] administrative review; 2012–2013) 

and accompanying Certain Frozen Fish Fillets from [Vietnam]: Decision Mem. for the Prelim. 

Results of the 2012–2013 [ADD] Administrative Review at 8–12, A-552-801, (July 2, 2014), 

available at https://enforcement.trade.gov/frn/summary/vietnam/2014-16311-1.pdf (last visited 

July 2, 2019) (unchanged in final determination). Commerce modified its practice on November 

4, 2013, and now conducts an administrative review of the NME entity only where it receives a 

request for review of that entity, or where Commerce elects to self-initiate such a review. See 

Antidumping Proceedings: Announcement of Change in Department Practice for Respondent 

Selection in [ADD] Proceedings and Conditional Review of the Nonmarket Economy Entity in 

NME [ADD] Proceedings, 78 Fed. Reg. 65,963, 65,970 (Dep’t Commerce Nov. 4, 2013). 
Consol. Court No. 17-00056 Page 10 

2.8 First, Golden Quality misconstrues the court’s holding in Thuan An. There, 

Commerce’s determination could not be sustained because Commerce failed to 

reasonably ground its determination in statutory authority. Thuan An, 42 CIT at __, 348 

F. Supp. 3d at 1347. Commerce viewed the rate as something other than the statutorily 

authorized individually investigated rate or the all-others rate. Def.’s Supplemental Br. at 

1. On remand, Commerce acknowledges that the rate is an individually investigated rate, 

and Commerce’s determination is therefore consistent with the authority granted by 

Congress. Commerce thus complied with the court’s remand instruction. 

Second, to the extent Golden Quality argues that Commerce lacks statutory 

authority to apply an NME-entity rate in an administrative review where the rate was 

investigated in a prior review or in the original investigation, that argument misses the 

mark.9 Golden Quality points to no statute or regulation requiring Commerce to 

 

8 Golden Quality did not challenge the final determination on the grounds that the Vietnam-wide 

rate was not authorized by statute, nor did it incorporate Tafishco’s arguments by reference. See 

Mem. Law Supp. Consol. Pl. [Golden Quality’s] Mot. J. Agency R., Nov. 16, 2017, ECF No. 41 

(“Golden Quality’s Br.”). Instead, Golden Quality challenged Commerce’s determination 

regarding CONNUM-specific reporting. See Compl. at 5, Apr. 20, 2017, ECF No. 6 ([Golden 

Quality] v. United States, Court No. 17-00088); Golden Quality’s Br. at 8–20. Tafischo did not 

submit any comments responding to the Remand Results, though Golden Quality did, 

commenting specifically on the issues raised initially by Tafishco. See Golden Quality’s 

Comments at 1–3. Golden Quality argues that the rate Commerce applied is unlawful because 

Commerce failed to comply with the Court’s order, and thus on remand Commerce should assign 

a new rate to Golden Quality. Id. at 3. Notwithstanding the fact that Tafishco argued that 

Commerce lacked statutory authority to assign the Vietnam-wide rate, Commerce addresses the 

merits of Golden Quality’s comments on remand. See Remand Results at 11–14.

9

 In Thuan An, Tafishco argued that the Vietnam-wide rate could not be considered an individually 

investigated rate because “there was never a Department-led review of the Vietnam-wide NME 

entity, or any of its member companies.” Tafishco’s Br. at 5. First, to the extent Tafishco intended 

to argue that Commerce never reviewed the Vietnam entity in any segment of these proceedings, 

(footnote continued) 
Consol. Court No. 17-00056 Page 11 

investigate the NME entity in each administrative review, and Commerce “has broad 

authority to interpret the antidumping statute and devise procedures to carry out the 

statutory mandate.”10 Sigma Corp., 117 F.3d at 1405. Indeed, as Commerce explains, 

its current practice is to review the NME entity only when it receives a request to do so, 

or when it chooses to self-initiate such a review. Remand Results at 3 n.10 (citing 

Antidumping Proceedings: Announcement of Change in Department Practice for 

Respondent Selection in [ADD] Proceedings and Conditional Review of the Nonmarket 

Economy Entity in NME [ADD] Proceedings, 78 Fed. Reg. 65,963, 65,970 (Dep’t 

Commerce Nov. 4, 2013)). In this review, Commerce received no request to review the 

Vietnam entity, and thus the Vietnam-wide rate adopted in the tenth review remained in 

 

that assertion is untrue. Commerce examined the Vietnam entity in the original investigation, see 

Certain Frozen Fish Fillets from [Vietnam], 68 Fed. Reg. 37,116, 37,120 (Dep’t Commerce June 

23, 2003) (notice of final [ADD] determination of sales at less than fair value and affirmative critical 

circumstances), and again in the tenth administrative review. See Certain Frozen Fish Fillets 

from [Vietnam], 80 Fed. Reg. 2,394, 2,395 (Dep’t Commerce Jan. 16, 2015) (final results of [ADD] 

administrative review; 2012–2013). Second, to the extent Tafishco intended to argue that 

Commerce was required by law to review the Vietnam entity in this review in order to assign the 

Vietnam-wide rate to Tafishco, Tafishco points to no statute or regulation imposing such a 

requirement. See Tafishco’s Br. at 5. 

10 Golden Quality cites the court’s language in Thuan An stating that although 19 U.S.C. § 1673d 

applies on its face to investigations, the statute “applies with equal force to administrative 

reviews.” Golden Quality’s Comments at 3 (quoting Thuan An, 348 F. Supp. 3d at 1347 n.11). 

Golden Quality apparently construes this language to require that a rate be investigated in the 

current review if it is to be considered “individually investigated.” See 19 U.S.C. 

§ 1673d(c)(1)(B)(i)(I). The statute, however, does not contain such a requirement, nor was the 

court’s language meant to impose such a requirement on Commerce. The language in question 

simply acknowledges that Congress contemplated two types of rates in antidumping 

investigations, and the statute does not grant Commerce authority to create a new kind of rate in 

administrative reviews. 
Consol. Court No. 17-00056 Page 12 

effect. Because Tafishco failed to demonstrate its independence from the government, 

Commerce lawfully applied the Vietnam-wide rate to Tafishco.11 

Finally, Tafishco argues that Commerce’s assignment of a $2.39 per kg rate to 

Tafishco is unsupported by substantial evidence because Commerce was obligated to 

“corroborate the Vietnam-wide rate according to ‘its reliability and relevance to the 

countrywide entity as a whole.’”12 Tafishco’s Br. at 7 (quoting Peer Bearing Co. v. United 

States, 32 CIT 1307, 1313, 587 F. Supp. 2d 1319, 1327 (2008)); see also 19 U.S.C. 

§ 1677e(c).13 However, Commerce is not required to corroborate rates applied in a 

previous segment of the same proceeding. See 19 U.S.C. § 1677e(c)(2) (Commerce 

“shall not be required to corroborate any dumping margin or countervailing duty applied 

in a separate segment of the same proceeding”).14 Here, Commerce determined the rate 

 

11 Tafishco argued in Thuan An that the Vietnam-wide rate cannot be based on “facts available” 

or “adverse inferences” because 19 U.S.C. § 1677e only applies to the “applicable 

determinations” listed in the statute, i.e., determinations of individually investigated rates and allothers rates. Tafishco’s Br. at 6; see also 19 U.S.C. § 1673d(c). Tafishco’s argument is 

unavailing, given Commerce’s characterization of the Vietnam-wide rate as an individually 

investigated rate. Commerce’s determination thus falls squarely within the “applicable 

determinations” referenced by the statute. See 19 U.S.C. § 1677e. 

12 Tafishco did not participate in the redetermination. Tafishco made its corroboration argument 

when it challenged the final determination in Thuan An. See Tafishco’s Br. at 7–12. The court 

did not reach the argument in Thuan An, 42 CIT __, 348 F. Supp. 3d 1340, but reaches it now. 

13 When Commerce makes a determination using facts available with an adverse inference, the 

statute imposes a corroboration requirement. See 19 U.S.C. § 1677e(c). Specifically, section 

1677e(c) provides that when Commerce “relies on secondary information rather than on 

information obtained in the course of an investigation or review,” Commerce “shall, to the extent 

practicable, corroborate that information from independence sources that are reasonably at their 

disposal.”

14 Commerce in the Final Decision Memo invokes 19 U.S.C. § 1677e(c)(2), as recently amended 

by the Trade Preferences Extension Act of 2015 (“TPEA”), in support of its determination that it 

need not corroborate the NME rate. Final Decision Memo at 15–16. Commerce is correct that 

(footnote continued) 
Consol. Court No. 17-00056 Page 13 

applied to Tafishco in the eighth administrative review based on data reported by a 

respondent, and subsequently applied this rate to the Vietnam entity by application of 

facts available with an adverse inference in the tenth administrative review. See Certain 

Frozen Fish Fillets from [Vietnam], 79 Fed. Reg. 40,059 (Dep’t Commerce July 11, 2014) 

(preliminary results of the [ADD] administrative review; 2012–2013) and accompanying 

Certain Frozen Fish Fillets from [Vietnam]: Decision Mem. for the Prelim. Results of the 

2012–2013 [ADD] Administrative Review at 8–12, A-552-801, (July 2, 2014), available at 

https://enforcement.trade.gov/frn/summary/vietnam/2014-16311-1.pdf (last visited July 2, 

2019) (unchanged in final determination). Commerce thus applied the rate in a separate 

segment of these proceedings and was therefore under no obligation to corroborate. 

 

TPEA provides that rates established in a prior segment of a proceeding need not be 

corroborated. See 19 U.S.C. § 1677e(c)(2). Defendant-Intervenor argues that Commerce was 

not required to corroborate the Vietnam-wide rate because Commerce made no finding of AFA in 

this review, and therefore even without TPEA there is no requirement of corroboration. Def.-

Intervenors’ Resp. Opp’n Pls.’ Rule 56.2 Mots. J. Agency R. at 9–11, Apr. 20, 2018, ECF No. 56. 

As a result of Commerce’s change in practice, it no longer conditionally reviews an NME entity; 

rather, it only reviews the NME entity if it receives a request to do so or elects to conduct a review 

on its own accord. See Antidumping Proceedings: Announcement of Change in Department 

Practice for Respondent Selection in [ADD] Proceedings and Conditional Review of the 

Nonmarket Economy Entity in NME [ADD] Proceedings, 78 Fed. Reg. 65,963, 65,970 (Dep’t 

Commerce Nov. 4, 2013). Here, there was no request to review the NME entity. Commerce 

assigned respondents the Vietnam-wide rate because they failed to establish eligibility for a 

separate rate. Final Decision at 11, 15–16. Because Commerce did not review the Vietnam-wide 

entity, there could be no finding of facts available or adverse inferences, and therefore Commerce 

had no need to corroborate. 19 U.S.C. § 1677e(c)(1). Regardless of the effect of Commerce’s 

change in practice with respect to reviewing the NME entity, Commerce is correct that section 

1677e(c)(2) as amended relieves Commerce of the obligation to corroborate any rate established 

in a prior segment of the same proceeding. 
Consol. Court No. 17-00056 Page 14 

CONCLUSION 

 For the reasons discussed, Commerce’s Remand Results comply with the court’s 

order in Thuan An, 42 CIT at __, 348 F. Supp. 3d at 1354–55, and are in accordance with 

law. Therefore, Commerce’s Remand Results are sustained, and judgment will enter 

accordingly. 

 /s/ Claire R. Kelly 

 Claire R. Kelly, Judge 

Dated: July 8, 2019 

 New York, New York