Slip Op. 10-69

UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Pogue, Judge

Consol. Court No. 08-00301

OPINION AND ORDER

[Remand to Department of Commerce for further consideration of

appropriate separate rates for non-individually investigated

respondents]

Dated: June 17, 2010

Mayer Brown LLP (Matthew J. McConkey and Jeffery C. Lowe)

for Plaintiff Amanda Foods (Vietnam) Ltd. 

Thompson Hine LLP (Matthew R. Nicely and Christopher M.

Rassi) and Winston & Strawn LLP (William H. Barringer and Valerie

S. Ellis) for Consolidated Plaintiffs Ca Mau Seafood Joint Stock

Company; Cadovimex Seafood Import-Export and Processing JointStock Company; Cafatex Fishery Joint Stock Corporation; Can Tho

Agricultural and Animal Products Import Export Company; Coastal

Fisheries Development Corporation; C.P. Vietnam Livestock Co.,

Ltd.; Cuulong Seaproducts Company; Danang Seaproducts Import

Export Corporation; Investment Commerce Fisheries Corporation;

Minh Hai Export Frozen Seafood Processing Joint-Stock Company;

Minh Hai Joint-Stock Seafoods Processing Company; Ngoc Sinh

Private Enterprise; Nha Trang Fisheries Joint Stock Company; Nha

Trang Seaproduct Company; Phu Cuong Seafood Processing & ImportExport Co., Ltd.; Sao Ta Foods Joint Stock Company; Soc Trang

Aquatic Products and General Import-Export Company; Thuan Phuoc

Seafoods and Trading Corporation; UTXI Aquatic Products

AMANDA FOODS (VIETNAM) LTD., 

et al.,

 Plaintiffs,

 –v– 

UNITED STATES, 

 Defendant,

 – and – 

AD HOC SHRIMP TRADE 

ACTION COMMITTEE,

 Defendant-Intervenor.
Consol. Court No. 08-00301 Page 2

Processing Company; Viet Foods Co., Ltd.; Kim Anh Co., Ltd.;

Phuong Nam Co., Ltd.

Tony West, Assitant Attorney General; Jeanne E. Davidson,

Director; Franklin E. White, Jr., Assistant Director, Commercial

Litigation Branch, Civil Division, United States Department of

Justice (Stephen C. Tosini), and, of counsel, Jonathan M.

Zielinski, Senior Attorney, Office of the Chief Counsel for

Import Administration, Department of Commerce, for Defendant

United States.

Picard Kentz & Rowe LLP (Andrew W. Kentz and Nathaniel M.

Rickard)for Defendant-Intervenor Ad Hoc Shrimp Trade Action

Committee.

Pogue, Judge: This consolidated action is again before the

court following the initial remand of the final results of the

second administrative review of the antidumping duty order

covering frozen warmwater shrimp from the Socialist Republic of

Vietnam.1 Plaintiffs are cooperative non-investigated

respondents in the administrative review who have established

their entitlement to a separate rate. In the review, the United

States Department of Commerce (“Commerce” or “the Department”) 

determined Plaintiffs’ dumping margins to be equal to the nonzero

rates assigned to Plaintiffs in the investigation underlying this

order, rather than to the weighted average of margins calculated

for the individually-investigated respondents. All individually1

 See Amanda Foods (Vietnam) Ltd. v. United States, __ CIT

__, 647 F. Supp. 2d 1368, 1374-75, 1379-82 (2009)(“Amanda

I”)(remanding Certain Frozen Warmwater Shrimp from the Socialist

Republic of Vietnam, 73 Fed. Reg. 52,273 (Dep’t Commerce Sept. 9,

2008)(final results and final partial rescission of antidumping

duty administrative review) (“Final Results”)).
Consol. Court No. 08-00301 Page 3

investigated respondents’ margins were zero or de minimis. In

Amanda I, the court remanded Commerce’s decision, directing the

Department to assign to Plaintiffs the weighted average of the

mandatory respondents’ rates, or to provide justification, based

on substantial evidence on the record, for using another rate.2

Amanda I, __ CIT at __, 647 F. Supp. 2d at 1382. 

As explained more fully below, by imputing to cooperative

respondents the behavior of uncooperative respondents, Commerce

has failed to comply with the court’s remand order in Amanda I. 

The Department has again failed to provide a rational connection

between the facts found and the rates applied. Accordingly, the

court again remands to Commerce the question of appropriate

antidumping duty rates for Plaintiffs. 

BACKGROUND

A. Amanda I

Commerce’s choice of assessment rate for cooperative noninvestigated respondents in the second review of this antidumping

duty order is fully chronicled in the court’s opinion in Amanda

I, 647 F. Supp. 2d at 1374-75. Briefly: 

2

 While some of the court’s conclusions are summarized in

the Background section of this opinion, familiarity with the

court’s decision in Amanda I is presumed. All other issues

originally raised by Plaintiffs in this consolidated action have

been dismissed pursuant to stipulation between the parties. (See

Stipulation of Partial Dismissal [Dkt. No. 83]; Order of

Dismissal [Dkt. No. 84].) 
Consol. Court No. 08-00301 Page 4

[R]ather than averaging the two mandatory respondents’

[zero and de minimis] rates and using the resulting

average for the separate rate companies, Commerce

assigned to the separate rate companies the most recent

rate that each had received in a prior proceeding. 

Specifically, the Department applied the rate that the

separate rate companies had received in the original

investigation, based on sales made prior to the

imposition of the dumping order . . . .

Id. at 1374 (citing Final Results, 73 Fed. Reg. at 52,275-76).3 

In Amanda I, the court noted that “[t]he sole reasoning that

the Department provided for this decision was that thirty-five

companies received margins based on [adverse facts available

(“AFA”)] and that ‘the circumstances of this review are similar

to those of the preceding review.’” Id. at 1381 (quoting Final

Results, 73 Fed. Reg. at 52,275 and citing Issues & Decision

Mem., A-552-802, 2d AR 02/01/06-01/31/07 (Sept. 2, 2008), Admin.

R. Pub. Doc. 231 (“I & D Mem.”)). 

The court found this analysis insufficient, concluding that

“there is no basis in the [antidumping] statute for penalizing

cooperative uninvestigated respondents due solely to the presence

of non-cooperative uninvestigated respondents who receive a

margin based on AFA,” id. (citing Yantai Oriental Juice Co. v.

United States, 27 CIT 477, 487 (2003)), and that “nowhere in the

3

 Separate rate companies that were individually examined in

the first administrative review of this antidumping duty order

were assigned the rate they received in the first review. Final

Results, 73 Fed. Reg. at 52,275-76. However, none of the rates

assigned based on rates from the first review are at issue in

this case. See supra note 2.
Consol. Court No. 08-00301 Page 5

record [did] Commerce provide sufficient reasoning linking the

evidence to its conclusion that margins . . . established during

the period of investigation, prior to the imposition of the

antidumping duty order, are ‘based on the best available

information and establish[] [the relevant] antidumping margins as

accurately as possible,’” id. at 1382 (quoting Shakeproof

Assembly Components, Div. of Ill. Tool Works, Inc. v. United

States, 268 F.3d 1376, 1382 (Fed. Cir. 2001)).4 

B. Remand Results

In its remand redetermination, the Department continues to

defend as reasonable its decision “to assign the margin of 4.57

percent, the margin calculated for cooperative separate rate

respondents in the underlying investigation, to the separate rate

respondents in the instant review with no history of a calculated

4 While the Court of Appeals for the Federal Circuit has

noted that the requirement that Commerce use the “best available

information” may not always be helpful and unambiguous, see

Dorbest Ltd. v. United States, Nos. 2009-1257, 2009-1266, 2010 WL

1931677, at *7 (Fed. Cir. May 14, 2010), and that this

requirement may not be used to demand of Commerce more than is

expressly required by more specific relevant provisions of the

antidumping statute, see id. at *8, it remains the case that, to

be supported by substantial evidence, Commerce’s determinations

must be supported by a rational link to information which may be

used to help approximate respondents’ actual pricing behavior,

and that Commerce does not have discretion to select dumping

margins “with no relationship to the respondent’s actual dumping

margin.” F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v.

United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000). 
Consol. Court No. 08-00301 Page 6

margin,” Final Results of Redetermination Pursuant to Court

Remand (Mar. 3, 2010)(“Remand Results”) at 13, as well as its

decision to assign to Minh Hai Joint-Stock Seafoods Processing

Company a margin of 4.30 percent, the rate received by this

company in the original investigation, based on its own data. See

id. at 4, 22.

The Department argues that Section 735(c)(5) of the Tariff

Act of 1930, as amended, 19 U.S.C. § 1673d(c)(5)(2006)5 (the

“all-others rate” provision for investigations) – the statutory

provision upon which the Department usually relies in

establishing dumping margins for cooperative respondents not

selected for individual examination in an administrative review6

– “articulates a preference that the Department avoid zero, de

minimis rates or rates based entirely on facts available” when it

determines the appropriate dumping margins for cooperative

uninvestigated respondents. Id. at 14. Further, Commerce

contends that the existence in the record of “evidence of dumped

sales in the prior [period of review (“POR”)] and instant POR,”

id. at 15, renders reasonable the agency’s choice of dumping

5

 Further citation to the Tariff Act of 1930, as amended, is

to Title 19 of the U.S. Code, 2006 edition.

6 See, e.g., Longkou Haimeng Mach. Co. v. United States, __

CIT __, 581 F. Supp. 2d 1344, 1359 (2008)(discussing and

upholding this practice as in accordance with the statutory

scheme). 
Consol. Court No. 08-00301 Page 7

margins for Plaintiffs, see id. at 15-18, because “selecting

rates from prior segments . . . reasonably reflects the existence

of dumping under the order[.]” Id. at 18. 

The Department points to four particulars in the record as

evidence supporting the dumping margins assigned to Plaintiffs

for the POR in question – the fact that two mandatory respondents

received rates based on AFA in the first review; transactionspecific above-de minimis dumping margins for at least one

mandatory respondent in the second review; the existence of

uncooperative respondents in the second review; and the fact that

some of the subject merchandise entered during the POR came from

producers/exporters who were assessed cash deposit rates based on

AFA but who nevertheless did not request to be reviewed. Id. at

16-18.

Plaintiffs contend that the Department has failed to comply

with the court’s order in Amanda I because the margins assigned

are not supported by substantial evidence on the record. (See

generally Comments on Final Results of Redetermination Pursuant

to Ct. Remand on Behalf of [Pls.] (“Pls.’ Comments”).) 

Specifically, Plaintiffs argue that Commerce continues to offer

as evidence the imputation of dumping to Plaintiffs based on the

presence of uncooperative respondents in the first and second

reviews, despite the court’s holding in Amanda I that this fact

alone cannot constitute substantial evidence supporting the
Consol. Court No. 08-00301 Page 8

reasonableness of margins assigned to cooperative Plaintiffs.

(See Pls.’ Comments at 2-4, 6-8.) With regard to Commerce’s

reliance on transaction-specific dumping margins found for one of

the mandatory respondents, Plaintiffs argue that “Commerce cannot

have it both ways; it cannot assign an overall de minimis margin

to mandatory respondents, yet use individual comparisons from

those respondents’ margin calculations to justify application of

an above-de minimis margin to non-mandatory respondents.” (Id. at

5.) 

STANDARD OF REVIEW

“The court will sustain the Department’s determination upon

remand if it complies with the court’s remand order, is supported

by substantial evidence on the record, and is otherwise in

accordance with law.” Jinan Yipin Corp. v. United States, __ CIT

__, 637 F. Supp. 2d 1183, 1185 (2009) (citing 19 U.S.C.

§ 1516a(b)(1)(B)(i)).

“Substantial evidence” is “such evidence as a reasonable

mind might accept to support a conclusion.” Universal Camera

Corp. v. NLRB, 340 U.S. 474, 477 (1951) (quotation marks and

citations omitted). “The specific determination [the court]

make[s] is whether the evidence and reasonable inferences from

the record support [Commerce’s] finding.” Daewoo Elecs. Co. v.

Int’l Union of Elec., Elec., Technical, Salaried & Mach. Workers,

AFL-CIO, 6 F.3d 1511, 1520 (Fed. Cir. 1993) (internal quotation
Consol. Court No. 08-00301 Page 9

marks and citation omitted). That is, “[a] factual finding is

supported by substantial evidence when the factfinder could

rationally draw support for the finding from the relevant record

evidence.” Penrod Drilling Co. v. Johnson, 905 F.2d 84, 87 (5th

Cir. 1990). Further, to be supported by substantial evidence,

agency findings must be “reached by reasoned decision-making,

including . . . a reasoned explanation supported by a stated

connection between the facts found and the choice made.” Elec.

Consumers Res. Council v. Fed. Energy Regulatory Comm’n, 747 F.2d

1511, 1513 (D.C. Cir. 1984) (citing Burlington Truck Lines, Inc.

v. United States, 371 U.S. 156, 168 (1962)) (quotation marks and

additional citations omitted). 

DISCUSSION

The court first considers the legal premise for Commerce’s

remand decision, concluding that the agency’s statutory

construction is not reasonable and therefore not entitled to

Chevron deference.7

 The court then examines the evidentiary

7 To the extent that Commerce’s determination depends upon a

particular construction of its statutory authority, the court

first looks to whether “Congress has directly spoken to the

precise question at issue,” Chevron, U.S.A. Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842 (1984), using traditional

tools of statutory construction. Id. at 843 n.9; see also Timex

V.I., Inc. v. United States, 157 F.3d 879, 882 (Fed. Cir. 1998)

(citation omitted)). “[I]f the text answers the question, that

is the end of the matter.” Timex, 157 F.3d at 882 (citations

omitted). If, after using traditional tools of statutory
Consol. Court No. 08-00301 Page 10

bases for the Department’s remand decision, concluding that the

dumping margins assigned to Plaintiffs on remand are not

supported by substantial evidence. 

A. Commerce’s Statutory Construction on Remand is Not Entitled

to Deference.

No statutory or regulatory provision directly addresses the

methodology to be employed when calculating a dumping margin for

companies not selected for individual investigation where

Commerce limits its examination in an administrative review. 

Instead, as noted above, Commerce generally relies on the “all

others rate” provision governing investigations under the

antidumping statute, 19 U.S.C. § 1673d(c)(5). Remand Results at

14 (“Generally we have looked to [19 U.S.C. § 1673d(c)(5)], which

provides instructions for calculating the all-others rate in an

investigation, for guidance when calculating the rate for

respondents we did not examine individually in an administrative

construction, the court cannot conclude that the statute itself

answers the question at issue, then Commerce’s statutory

interpretation is entitled to deference so long as it is

reasonable. See United States v. Mead Corp., 533 U.S. 218, 229

(2001); Chevron, 467 U.S. at 843; Pesquera Mares Australes Ltda.

v. United States, 266 F.3d 1372, 1382 (Fed. Cir. 2001)

(“[S]tatutory interpretations articulated by Commerce during its

antidumping proceedings are entitled to judicial deference under

Chevron.”); Koyo Seiko Co. v. United States, 36 F.3d 1565, 1573

(Fed. Cir. 1994) (“In a situation where Congress has not provided

clear guidance on an issue, Chevron requires us to defer to the

agency’s interpretation of its own statute as long as that

interpretation is reasonable.”). 
Consol. Court No. 08-00301 Page 11

review.”). See also Final Results, 73 Fed. Reg. at 52,274

(characterizing the Department’s practice in this regard in

language mirroring that found in 19 U.S.C. § 1673d(c)(5)); I & D

Mem. at 18-19 (relying on 19 U.S.C. § 1673d(c)(5) and its

accompanying provision in the Statement of Administrative Action

to justify choice of separate rate in this case); Longkou, __ CIT

__, 581 F. Supp. 2d at 1359 (discussing and upholding this

practice as in accordance with the statutory scheme). 

When Commerce interpreted this all-others rate provision in

its remand determination, it concluded that the provision

generally disfavors the use of zero and de minimis margins in

calculating dumping margins for cooperative uninvestigated

companies. Remand Results at 26. Commerce then relied on this

interpretation in deciding not to base the dumping margins

assigned to Plaintiffs on the zero and de minimis margins found

for all individually investigated respondents in the second

review. Id. (“It is because of the statute’s clear preference to

avoid using de minimis/zero and AFA rates in the [all-others

rate] average that we have not used any of these rates in

assigning a rate to the non-examined companies.”).8

8 See also Remand Results at 14-15 (arguing that 19 U.S.C.

§ 1673d(c)(5) “articulates a preference that the Department avoid

zero, de minimis rates or rates based entirely on facts available

when it determines the all others rate,” and explaining that “the

Department [therefore] consistently seeks to avoid the use of

total facts available, zero and de minimis margins in determining
Consol. Court No. 08-00301 Page 12

In reviewing a decision which the agency seeks to justify as

compelled or preferred by a particular statutory provision, the

court first looks to the text of the statute, to determine

whether “Congress has directly spoken to the precise question at

issue.” Chevron, 467 U.S. at 842. See also Timex, 157 F.3d at

882. 

The statutory provision at issue, Section 1673d(c)(5),

provides a general rule and an exception:

(A) General rule

For purposes of this subsection and section

1673b(d) of this title, the estimated all-others rate

shall be an amount equal to the weighted average of the

estimated weighted average dumping margins established

for exporters and producers individually investigated,

excluding any zero and de minimis margins, and any

margins determined entirely under section 1677e of this

title.

non-selected rates in administrative reviews, in order to

implement this statutory preference”); id. at 22-23 (“[T]he

statute clearly disfavors the use of de minimis or zero margins

in the calculation of the ‘all-others’ average rate in an

investigation. . . . As we . . . calculated only zero and de

minimis rates for the individually examined respondents . . ., we

considered the statutory preference to avoid the use of these

rates in the average. . . . Therefore, taking guidance from

[19 U.S.C. § 1673d(c)(5)] addressing circumstances where the

Department calculates zero or de minimis rates, . . . rather than

using these disfavored rates, we looked to another reasonable

method to assign rates to non-individually examined

respondents.”); (Def.’s Resp. to Pls.’ Remand Comments (“Def.’s

Resp.”) at 5 (“Commerce explained that 19 U.S.C. § 1673d(c)(5),

to which Commerce refers for guidance regarding how to assign

rates to separate rate companies, expresses a preference for not

relying upon rates that are zero, de minimis, or based entirely

upon facts available. . . . [T]his statutory preference . . .

supports Commerce’s methodology.”)). 
Consol. Court No. 08-00301 Page 13

(B) Exception

If the estimated weighted average dumping margins

established for all exporters and producers

individually investigated are zero or de minimis

margins, or are determined entirely under section 1677e

of this title, [Commerce] may use any reasonable method

to establish the estimated all-others rate for

exporters and producers not individually investigated,

including averaging the estimated weighted average

dumping margins determined for the exporters and

producers individually investigated.

19 U.S.C. § 1673d(c)(5)(A) & (B). 

By its plain terms, this statutory provision’s intended

application is to administrative proceedings covered under

Sections 1673b and 1673d of Title 19 – that is, to preliminary

and final determinations in investigations of sales at less than

fair value underlying the imposition of an antidumping duty

order. Therefore, the court cannot conclude that “Congress has

directly spoken [in this provision or elsewhere in the

antidumping statute] to the precise question at issue,” Chevron,

467 U.S. at 842 – i.e., the court cannot conclude that Congress

has directly addressed the issue of whether Commerce must avoid

using zero or de minimis dumping margins, to the extent that

other rates are available, when calculating dumping margins for

cooperative non-individually investigated companies in an

administrative review. Accordingly, the court must determine

whether Commerce’s statutory interpretation is reasonable and

therefore entitled to deference. See id. at 843-44. As explained
Consol. Court No. 08-00301 Page 14

below, the court concludes that it is not. 

Commerce interprets Section 1673d(c)(5) to provide a general

congressional preference, applicable both in investigations and

administrative reviews, that Commerce avoid using zero or de

minimis margins to the extent possible when assigning dumping

margins to cooperative uninvestigated respondents. See Remand

Results at 26.9 However, subsection 1673d(c)(5)(B) provides an

exception to the preference, expressed in subsection

1673d(c)(5)(A), for excluding zero and de minimis margins from

the all-others rate calculation. Subsection (B) provides, inter

alia, that where, as here, all mandatory respondents receive zero

or de minimis dumping margins, the rule expressed in (A) does not

apply. Subsection (B) then states that, in such cases, averaging

the mandatory respondents’ zero and de minimis dumping margins

may serve as a reasonable method of establishing the all-others

rate. 19 U.S.C. § 1673d(c)(5)(B).10

9

 See also supra note 8. 

10 The court notes the Department’s characterization that

“the statute contemplates that [Commerce] may use an average of

the zero, de minimis and rates based entirely on facts available”

to arrive at an all-others rate in this case pursuant to

19 U.S.C. § 1673d(c)(5)(B). Remand Results at 15. However,

despite the presence of a rate based on AFA assigned to the

Vietnam-wide entity in the second review, Final Results, 73 Fed.

Reg. at 52,275, the statute states only that “dumping margins

determined for the exporters and producers individually

investigated” may be averaged to arrive at the all-others rate.

19 U.S.C. § 1673d(c)(5)(B) (emphasis added). Because the margins

for all individually investigated exporters/producers in the
Consol. Court No. 08-00301 Page 15

Thus, while Commerce is correct that the statute disfavors

including zero and de minimis margins in the all-others rate

calculation when positive non-FA-based rates for individually

investigated respondents are available, 19 U.S.C.

§ 1673d(c)(5)(A),11 it is an impermissible construction of this

provision to extend its disfavor to situations where, as here,

“the estimated weighted average dumping margins established for

all exporters and producers individually investigated are zero or

de minimis margins,” 19 U.S.C. § 1673d(c)(5)(B) (emphasis added). 

This extension is impermissible because the statute explicitly

provides an exemption from the preference against using zero or

instant review were zero or de minimis, those portions of the

statute which deal with situations where some or all individually

investigated companies receive rates based entirely on facts

available are not applicable here. The court will therefore

refer only to those portions of the statute that deal with zero

or de minimis margins for mandatory respondents.

11 See Longkou, __ CIT __, 581 F. Supp. 2d at 1360

(upholding different treatment of mandatory respondents’ zero/de

minimis and above-de minimis margins for purposes of calculating

the all-others rate pursuant to 19 U.S.C. § 1673d(c)(5)(A) as an

“inherent and accepted part” of the statutory scheme). The

Department relies on Longkou to support its argument that a

statutory preference against the use of zero/de minimis margins

in calculating the all-others rate supports the reasonableness of

Commerce’s choice of separate rate in this case. Remand Results

at 22-23. However, because in Longkou the Department relied on,

and the court construed, subsection (A) of section 1673d(c)(5),

rather than subsection (B), the issue presented in Longkou and

the holding of that case cannot support the reasonableness of the

Department’s reliance on subsection (B) – which creates an

exception to the rule expressed in subsection (A) – in the case

at bar. See Longkou, __ CIT at __, 581 F. Supp. 2d at 1360. 
Consol. Court No. 08-00301 Page 16

de minimis margins in calculating the all-others rate for the

situation at issue here. Id. 

Simply put, when a statutory provision specifically lists

“averaging the [zero and de minimis] estimated weighted average

dumping margins determined for the exporters and producers

individually investigated” as the sole provided example of “a

reasonable method to establish the estimated all-others rate”

when all mandatory respondents’ margins are zero or de minimis,

19 U.S.C. § 1673d(c)(5)(B), it is impermissible to interpret this

provision as expressing a preference against the use of such

methodology in such situations. This must particularly be the

case when the “authoritative expression by the United States

concerning the interpretation and application of . . . this

Act”12 expressly states that the allegedly disfavored methodology

is in fact “[t]he expected method in such cases.” SAA,

1994 U.S.C.A.A.N. at 4201.13 In addition, Commerce’s

12 19 U.S.C. § 3512(d) (referring to the Statement of

Administrative Action accompanying the Uruguay Round Agreements

Act, H.R. Doc. No. 103-316 (1994), reprinted in 1994 U.S.C.A.A.N.

4040 (“SAA”)).

13 The Department recognizes that subsection 1673d(c)(5)(B)

explicitly lists averaging the mandatory respondents’ margins as

an example of a reasonable methodology for establishing the allothers rate when all individually-investigated respondents

receive zero or de minimis margins. See Remand Results at 14-15. 

However, the Department argues that this language applies only to

investigations, not administrative reviews. Id. 

Commerce offers two grounds in attempting to distinguish the

circumstances of the instant administrative review from those of
Consol. Court No. 08-00301 Page 17

interpretation effectively renders the exception a nullity. See

Duncan v. Walker, 533 U.S. 167, 174 (2001) (“[A] statute ought,

upon the whole, to be so construed that, if it can be prevented,

no clause, sentence, or word shall be superfluous, void, or

insignificant.” (citation omitted)). 

Accordingly, Commerce’s reliance upon an interpretation of

the statute which reads the preference expressed in subsection

1673d(c)(5)(A) into the exception to that subsection found in

subsection 1673(c)(5)(B), see Remand Results at 22-23, is

an initial investigation. First, the agency argues that

subsection (B) is intended to apply only to circumstances where

the “expected method” under that subsection would be to average

zero/de minimis rates with rates based on AFA, and never solely

to average zero and de minimis rates. See Id. at 15. Second,

Commerce argues that averaging the margins calculated for all

individually investigated companies as the all-others rate is the

“expected method” only for investigations, where no other

potential rates, such as rates from prior segments, would be

available. See id. 

Commerce’s first argument in this regard is based on an

erroneous interpretation of the law. See supra note 9. Because

the provision’s “expected method” is to average only the rates

calculated for individually investigated companies, nothing

prevents the “expected method” of subsection (B) from resulting

in the averaging of zero and de minimis rates found for

individually investigated companies in an underlying

investigation, such as in situations where some uncooperative

non-investigated companies receive rates based on AFA. Hence

nothing necessarily distinguishes the circumstances of this

review from the kinds of circumstances to which subsection (B)

was intended to apply. With regard to Commerce’s second

argument, as the court explained in Amanda I, and reiterates

below, the availability of rates from prior segments does not in

itself suffice to support the reasonableness of applying such

rates to pricing behavior in subsequent periods of review, and

therefore does not necessarily bear on the reasonableness of

using section (B)’s expected method in a particular segment.
Consol. Court No. 08-00301 Page 18

unreasonable and therefore not entitled to deference. See

Chevron, 467 U.S. at 845. While section 1673d(c)(5)(A) expresses

a preference for avoiding zero and de minimis margins when

calculating the all-others rate for cooperative uninvestigated

respondents, subsection (B) exempts from this preference

situations where, as here, all individually investigated

respondents receive zero/ de minimis rates. 

Contrary to Commerce’s argument, therefore,

Section 1673d(c)(5) does not support Commerce’s methodology for

establishing Plaintiffs’ dumping margins. As the court held in

Amanda I, “as a legal matter, Commerce may choose to include or

to exclude the mandatory respondents’ zero or de minimis margins

in calculating a separate rate,” 647 F. Supp. 2d at 1380, as long

as the methodology used and the rates chosen are reasonable, see

id. at 1379. By categorically excluding the mandatory

respondents’ zero and de minimis margins in calculating the

separate rate, the methodology used on remand was unreasonable. 

A further remand is therefore required. 

Moreover, even were Commerce’s exclusion of the mandatory

respondents’ margins from the separate rate calculation not

categorical, the court could not accept as reasonable, based on

the record here, the dumping margins assigned to Plaintiffs in

this review. It is to the consideration of that issue that the

court now turns.
Consol. Court No. 08-00301 Page 19

B. Commerce’s choice of dumping margins assigned to Plaintiffs

is not supported by substantial evidence in the record.

Because the record for this review does not contain

substantial evidence sufficient to establish a reasonable link

between the rates assigned to Plaintiffs and Plaintiffs’ pricing

behavior during the POR, Commerce’s decision in this regard is in

any case not reasonable, especially in light of the overriding

statutory purpose of accuracy in the calculation of dumping

margins. See, e.g., Parkdale, 475 F.3d at 1380 (Commerce must

calculate dumping margins “as accurately as possible”); De Cecco,

216 F.3d at 1032 (Commerce does not have discretion to select

dumping margins “with no relationship to the respondent’s actual

dumping margin”); U.S. Steel Corp. v. United States, Slip. Op.

10-28, 2010 WL 1347689, at *19 (CIT Mar. 19, 2010) (“It is wellestablished that Commerce is required to calculate antidumping

duty margins as accurately as possible in each segment of a

proceeding.” (citing Rhone Poulenc, Inc. v. United States, 899

F.2d 1185, 1191 (Fed. Cir. 1990))). 

The Department points to four areas in the record as

evidence in support of the dumping margins assigned to Plaintiffs

in this review: 

1) the existence of a 25.76 percent rate, based on AFA, for

two mandatory respondents in the first review, as “evidence that
Consol. Court No. 08-00301 Page 20

dumping has occurred since the investigation of the underlying

order,” Remand Results at 16 (“Ground 1"); 

2) the fact that “[a]t least one of the respondents

individually investigated had transaction-specific margins that

were higher than the 4.57 percent rate,” id. (“Ground 2"); 

3) the fact that “[o]f the 63 exporters covered by the

review, 35 exporters did not submit quantity and value

questionnaire responses at the beginning stages of the

proceeding, despite confirmed receipt of each attempt [to solicit

such response],” id. at 16-17, as evidence of continued dumping

during the POR, at a rate presumed to be at least equal to 25.76

percent, the AFA rate assigned to unresponsive exporters (“Ground

3"); and 

4) the fact that “entry data obtained from U.S. Customs and

Border Protection [] shows that exporters from the Vietnam-wide

entity entered subject merchandise during the POR for which a

cash deposit was paid at the rate of 25.76 percent,” id. at 17-

18, as evidence “that the cash deposit rate is reflective of the

level of actual dumping by these exporters during the POR,”

because “reviews were not requested by some of these exporters,”

id. at 18 (“Ground 4"). 

The court now turns to consider these evidentiary claims.
Consol. Court No. 08-00301 Page 21

1. Grounds 1, 3 & 4 – Uncooperative Respondents 

Grounds 1, 3 and 4, offered as evidence in support of the

dumping margins assigned to Plaintiffs in this review, are all

based on evidence of the existence of uncooperative respondents

in the first and/or second reviews: Ground 1 refers to the

presence of uncooperative respondents in the first review;14

Ground 3 refers to the presence of uncooperative respondents in

the second review; and Ground 4 refers to the presence of

uncooperative respondents in the first review who did not request

to be reviewed in the second review.15

As the court stated in Amanda I, however, “the Department’s

reference to the existence of . . . non-cooperating companies

. . . fails to justify its choice of dumping margin for the

cooperative uninvestigated respondents,” 647 F. Supp. 2d at 1381,

and “does not provide a basis for the Department’s use of results

from a prior determination with respect to the cooperating

companies in the present case.” Id. at 1382.

All fully cooperative individually investigated respondents

14 Remand Results at 16 (“[The Department] determined to

apply AFA to two mandatory respondents. As these companies

refused to provide the Department with necessary information, the

Department was required to resort to facts available, and applied

an adverse inference, determining their dumping margins to be

25.76 percent.” (citation omitted)). 

15 See Remand Results at 16 (explaining that the 25.76

percent rate was assigned to uncooperative respondents in the

first review). 
Consol. Court No. 08-00301 Page 22

in both the first and second reviews received zero or de minimis

rates.16 Accordingly, when Commerce says that it has “evidence of

dumped sales in the prior POR and instant POR,” Remand Results at

15, it is referring to the presumption of dumping with regard to

the uncooperative respondents in the first and second reviews.17 

But the presumption that uncooperative respondents engaged

in dumping during the POR is just that – a presumption. Because

Commerce does not actually possess accurate information with

respect to such companies’ pricing behavior during the POR, the

agency may presume that margins from prior segments constitute

“the most probative evidence of current margins because, if it

were not so, the [affected respondent], knowing of the rule,

would have produced current information showing the margin to be

less.” Rhone Poulenc, 899 F.2d at 1190 (emphasis in original).18 

16 Final Results, 73 Fed. Reg. at 52,275; Certain Frozen

Warmwater Shrimp From the Socialist Republic of Vietnam, 72 Fed.

Reg. 52,052, 52,054 (Dep’t Commerce Sept. 12, 2007) (final

results of the first antidumping duty administrative review and

first new shipper review). 

17 When respondents fail to cooperate, Commerce presumes the

existence of a positive dumping margin for such companies in

order to encourage the submission of accurate information with

regard to their pricing behavior during the POR. Rhone Poulenc,

899 F.2d at 1190-91. 

18 See also, e.g., Gallant Ocean (Thailand) Co. v. United

States, No. 2009-1282, 2010 WL 1508198 (Fed. Cir. Apr. 16, 2010)

(“An AFA rate must be ‘a reasonably accurate estimate of the

respondent’s actual rate, albeit with some built-in increase

inteded as a deterrent to non-compliance.’ The purpose of the

AFA rate ‘is to provide respondents with an incentive to

cooperate, not to impose punitive, aberrational, or
Consol. Court No. 08-00301 Page 23

In the case at bar, however, Commerce, by limiting its

examination pursuant to 19 U.S.C. § 1677f-1(c)(2)(B), has

expressly refused to accept current information from the

cooperative non-investigated separate rate companies. It follows

that the presumption that margins established in the underlying

investigation are most probative of current dumping margins

cannot be justified on the ground that it encourages the

submission of more accurate information.19 A presumption used to

encourage some companies to submit more accurate information may

not reasonably be transposed onto companies which are expressly

prevented from submitting more accurate information.20 See Rhone

uncorroborated margins.’” (emphasis omitted)(quoting De Cecco,

216 F.3d at 1032)).

19 See also SKF USA Inc. v. United States, __ CIT __,

675 F. Supp. 2d 1264, 1276 (2009) (“Although 19 U.S.C. § 1677e(b)

does not expressly state that Commerce may not adversely affect a

party to a proceeding based upon another interested party’s

failure to cooperate, a construction permitting such an absurd

result makes a mockery of any notion of fairness. In the

specific context of the antidumping laws, a party that did not

fail to meet its obligation to cooperate, as imposed by

§ 1677e(b), is entitled by § 1675(a) and related provisions of

the antidumping law to have its margin determined accurately and

according to the relevant information on the record of the

administrative review.”); id. at 1277 (admonishing Commerce for

creating a situation where a party may obtain “a margin or

deposit rate[] that is less favorable than that which would have

resulted if it had cooperated fully, even though Commerce never

found that the party did not cooperate fully as required by

§ 1677e(b)” (internal quotation marks and citation omitted)).

20 While Commerce argues that, because it “did not attribute

AFA rates to the non-individually examined respondents,” Remand

Results at 22, its separate rate determination is not tantamount

to penalizing cooperative respondents for the non-cooperation of
Consol. Court No. 08-00301 Page 24

Poulenc, 899 F.2d at 1191 (when agency presumes margins from

prior segments to be the best information regarding current

margins for uncooperative respondents, “since the presumption is

rebuttable, it achieves th[e] [] goal [of encouraging

cooperation] without sacrificing the basic purpose of the

statute: determining current margins as accurately as possible”). 

Moreover, a rebuttable presumption with respect to the

margins for some companies may not by itself serve as substantial

evidence supporting the accuracy of margins assigned to wholly

unrelated companies. See, e.g., Routen v. West, 142 F.3d 1434,

1439 (Fed. Cir. 1998) (“This court has never treated a

presumption as any form of evidence.” (citing A.C. Aukerman Co.

v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1037 (Fed. Cir. 1992)

(“[A] presumption compels the production of [a] minimum quantum

of evidence from the party against whom it operates, nothing

more. In sum, a presumption is not evidence.” (citations

omitted)); Del Vecchio v. Bowers, 296 U.S. 280, 286 (1935) (a

presumption “cannot acquire the attribute of evidence in the

claimant’s favor”); N.Y. Life Ins. Co. v. Gamer, 303 U.S. 161,

171 (1938) (“[A] presumption is not evidence and may not be given

others, id., in actuality the Department’s treatment of the

remaining Plaintiffs – essentially assigning a margin equivalent

to the highest prior margin available – appears to the court to

be no different from how it normally treats willfully noncooperative companies. See, e.g., Rhone Poulenc, 899 F.2d at

1190-91. 
Consol. Court No. 08-00301 Page 25

weight as evidence.”))). See also Wilner v. United States, 24

F.3d 1397, 1411 (Fed. Cir. 1994) (“Presumptions merely impose ‘on

the party against whom [they are] directed the burden of going

forward with evidence to rebut or meet the presumption . . . .’”

(emphasis added) (quoting Fed. R. Evid. 301)).

Because Commerce’s Grounds 1, 3 and 4 are all based

exclusively on presumptions applicable only to the parties

against whom they are made, these grounds cannot constitute

substantial evidence to support Commerce’s choice of dumping

margins for Plaintiffs in the second review.

2. Ground 2 – Transaction-Specific Margins

Second, with regard to transaction-specific, above-de

minimis margins found in the course of investigating the

mandatory respondents, suffice it to say that, if the presence of

these transaction-specific margins failed to justify assigning an

overall above-de minimis rate for the companies whose data they

embody,21 then they certainly cannot serve to do so for the

21 The court notes that the dumping margins for the

individually investigated respondents in this review were 0.00

and 0.01 percent. Final Results, 73 Fed. Reg. at 52,275. Thus

whatever transaction-specific dumping may have been engaged in by

the individually investigated respondents, Commerce seeks to have

this data justify the imposition of 4.30 or 4.57 percent dumping

margins for Plaintiffs for the entire POR, notwithstanding the

fact that these transaction-specific margins were evidently not

significant enough to raise the overall dumping margins of the

companies whose actual data they represent above the barest of

possible minimums. 
Consol. Court No. 08-00301 Page 26

remaining cooperative companies.

CONCLUSION

For all of the foregoing reasons, the court concludes that

Commerce’s argument that “selecting rates from prior segments to

apply to the nonselected companies in this review implements the

statute’s preference to avoid zero/de minimis and facts available

margins,” Remand Results at 18, is based on an unreasonable

interpretation of the statute, and that the agency’s finding that

doing so “reasonably reflects the existence of dumping under the

order [by Plaintiffs during the POR],” id., is not supported by

substantial evidence on the record. Accordingly, the 4.57

percent and 4.30 percent rates assigned to Plaintiffs are

unsupported.

On remand, therefore, Commerce must employ a reasonable

method, which may “includ[e] averaging the estimated weighted

average dumping margins determined for the exporters and

producers individually investigated,” 19 U.S.C. § 1673d(c)(5)(B).

Further, Commerce must assign to Plaintiffs dumping margins for

the second POR which are reasonable considering the evidence on

the record as a whole; to do so, Commerce may reopen the

evidentiary record if need be.22

22 To the extent that the Department finds that the record

does not currently contain sufficient evidence to support the

reasonable accuracy of dumping margins for Plaintiffs during the

POR, the court notes that neither Petitioner nor the Plaintiffs
Consol. Court No. 08-00301 Page 27

Therefore, this matter is remanded to the agency for further

consideration in accordance with this opinion. See 19 U.S.C.

§ 1516a(c)(3). Commerce shall have until ninety (90) days from

the date of this Order and Opinion to complete and file its

remand redetermination. Plaintiffs shall have until thirty (30)

days from that filing to file comments. Defendant and DefendantIntervenors shall have until fifteen (15) days after Plaintiffs’

comments are filed to file any reply. 

It is SO ORDERED.

 /s/ Donald C. Pogue 

Donald C. Pogue, Judge

Dated: June 17, 2010

 New York, N.Y.

object to reopening the evidentiary record. I & D Mem. at 16-17

(“If the Department elects not to use the mandatory respondents’

calculated rates to assign a separate rate, the [separate rate]

Respondents [] argue that the only alternative option is for the

Department to reopen the record and allow the [separate rate]

Respondents to supplement the record with company-specific,

count-size information as a reliable source for calculating the

separate-rate margin based on the average unit value (“AUV”) to

estimate U.S. price.”); id. at 17 (“Petitioner would not be

averse to reopening the record for the Department to determine

the separate-rate margin based on count-size specific AUV’s

reported by [separate rate] Respondents.”).