GODACO Seafood Joint Stock Company v. United States

Slip Op. 21-
UNITED STATES COURT OF INTERNATIONAL TRADE
GODACO SEAFOOD JOINT
STOCK COMPANY,
Plaintiff,
and
CAN THO IMPORT-EXPORT
JOINT STOCK COMPANY, ET
AL.,
Consolidated Plaintiffs,
v.
UNITED STATES,
Defendant,
and
CATFISH FARMERS OF
AMERICA, ET AL.,
Defendant-Intervenors.
Before: Jennifer Choe-Groves, Judge
Consol. Court No. 18-00063
OPINION AND ORDER
[Sustaining in part and remanding in part the remand results of the U.S.
Department of Commerce following the thirteenth administrative review of the
antidumping duty order on certain frozen fish fillets from the Socialist Republic of
Vietnam.]
Dated: January , 2021
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 1 of 27

Consol. Court No. 18-00063 	Page 2
Andrew B. Schroth, Jordan C. Kahn, and Ned H. Marshak, Grunfeld Desiderio
Lebowitz Silverman & Klestadt LLP, of Washington, D.C., for Plaintiff GODACO
Seafood Joint Stock Company.
Andrew B. Schroth and Jordan C. Kahn, Grunfeld Desiderio Lebowitz Silverman
& Klestadt LLP, of Washington, D.C., for Consolidated Plaintiff Golden Quality
Seafood Corporation. Andrew T. Shutz, Dhramendra N. Choudhary, Michael S.
Holton, and Ned H. Marshak also appeared.
Robert G. Gosselink, Jonathan M. Freed, and Kenneth N. Hammer, Trade Pacific,
PLLC, of Washington, D.C., for Consolidated Plaintiffs Can Tho Import-Export
Joint Stock Company, Vinh Quang Fisheries Corporation, NTSF Seafoods Joint
Stock Company, Green Farms Seafood Joint Stock Company, and Hung Vuong
Corporation.
John J. Kenkel, Alexandra H. Salzman, Judith L. Holdsworth, and J. Kevin
Horgan, deKieffer & Horgan, PLLC, of Washington, D.C., for Consolidated
Plaintiff Southern Fishery Industries Company, Ltd.
Kara M. Westercamp, Trial Attorney, Civil Division, U.S. Department of Justice,
of Washington, D.C., for Defendant United States. With her on the briefs were
Jeffrey Bossert Clark, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, and Patricia M. McCarthy, Assistant Director. Of counsel was Ian A.
McInerney, Office of the Chief Counsel for Trade Enforcement and Compliance,
U.S. Department of Commerce.
Jonathan M. Zielinski and James R. Cannon, Jr., Cassidy Levy Kent (USA) LLP,
of Washington, D.C., for Defendant-Intervenors Catfish Farmers of America,
Simmons Farm Raised Catfish, Inc., Magnolia Processing, Inc. (d/b/a Pride of the
Pond), Heartland Catfish Company, Guidry’s Catfish, Inc., Delta Pride Catfish,
Inc., Consolidated Catfish Companies LLC (d/b/a Country Select Catfish),
America’s Catch, and Alabama Catfish Inc. (d/b/a Harvest Select Catfish, Inc.).
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 2 of 27

Consol. Court No. 18-00063 	Page 3
Choe-Groves, Judge: This case involves frozen fish fillets, including
regular, shank, and strip fillets and portions thereof, of the species Pangasius
Bocourti, Pangasius Hypophthalmus (also known as Pangasius Pangasius), and
Pangasius Micronemus from the Socialist Republic of Vietnam (“Vietnam”). This
action arises from the thirteenth administrative review initiated in October 2016 by
the U.S. Department of Commerce (“Commerce”). Certain Frozen Fish Fillets
from the Socialist Republic of Vietnam (“Final Results”), 83 Fed. Reg. 12,717
(Dep’t Commerce Mar. 23, 2018) (final results, final results of no shipments, and
partial rescission of the antidumping duty administrative review; 2015–2016); see
Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Issues and
Decision Mem. for the Final Results of the Thirteenth Antidumping Duty Admin.
Review: 2015–2016, PD 337 (Mar. 14, 2018) (“IDM”); see also Certain Frozen
Fish Fillets from the Socialist Republic of Vietnam (“Prelim. Results”), 82 Fed.
Reg. 42,785 (Dep’t Commerce Sept. 12, 2017) (preliminary results, preliminary
determination of no shipments, and partial rescission of the antidumping duty
administrative review; 2015–2016). Before the court are the Final Results of
Redetermination Pursuant to Court Remand, ECF No. 77-1 (“Remand Results”),
pursuant to the court’s decision in GODACO Seafood Joint Stock Co. v. United
States (“GODACO I”), 44 CIT __, 435 F. Supp. 3d 1342 (2020). For the reasons
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 3 of 27

Consol. Court No. 18-00063 	Page 4
set forth in this opinion, the court sustains in part and remands in part the Remand
Results.
BACKGROUND
The court presumes familiarity with the facts of this case. See GODACO I,
44 CIT at __, 435 F. Supp. 3d at 1346–50. In GODACO I, the court considered
several Rule 56.2 motions for judgment on the agency record filed by the Parties.
See id. at __, 435 F. Supp. 3d at 1347. The court sustained in part and remanded in
part Commerce’s Final Results. Id.
Commerce filed the Remand Results on July 21, 2020. Plaintiff GODACO
Seafood Joint Stock Co. (“GODACO” or “Plaintiff”) filed comments. Pl.’s
Comments in Opp’n Remand Redetermination, ECF No. 79 (“GODACO Cmts.”).
Consolidated Plaintiffs Can Tho Import-Export Joint Stock Co., Green Farms
Seafood Joint Stock Co., Hung Vuong Corp., NTSF Seafoods Joint Stock Co., and
Vinh Quang Fisheries Corp. (collectively, “Consolidated Plaintiffs”) filed
comments jointly. Comments of Consol. Pls. [] on Final Results of
Redetermination Pursuant to Court Remand, ECF No. 80 (“Consol. Pls. Cmts.” or
“Consolidated Plaintiffs’ Comments”). Consolidated Plaintiffs’ Comments
incorporated by reference arguments made previously in the Memorandum in
Support of Motion for Judgment Upon the Agency Record of Consolidated
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 4 of 27

Consol. Court No. 18-00063 	Page 5
Plaintiffs Vinh Quang Fisheries Corp. et al. Mem. in Supp. of Mot. for J. Upon the
Agency R. of Consol. Pls. Vinh Quang Fisheries Corp. et al., ECF No. 28-1
(“Consol. Pls. Mot. for J.”). Consolidated Plaintiff Southern Fishery Industries Co.
(“South Vina”) filed a Rule 56.2 motion for judgment upon the agency record and
a reply brief, which included arguments opposing the rate imposed by Commerce
on South Vina. Consol. Pl. [South Vina]’s Rule 56.2 Mot. for J. Upon the Agency
R., ECF No. 33 (“South Vina Mot. for J.”); [Consol. Pl.] [South Vina] Reply Br.,
ECF No. 52.
The court refers collectively to Consolidated Plaintiffs and South Vina as
“Separate Rate Plaintiffs.” The court also refers collectively to parties not
individually examined and assigned the all-others separate rate as “separate rate
respondents.” See generally Prelim. Results, 82 Fed. Reg. at 42,786 (listing
additional companies, including Consolidated Plaintiffs, as separate rate
respondents not individually examined.).
Defendant United States (“Defendant”) responded. Def.’s Resp. Supp.
Remand Redetermination, ECF No. 83 (“Def. Cmts.”). Defendant-Intervenors
Catfish Farmers of America, Simmons Farm Raised Catfish, Inc., Magnolia
Processing, Inc. (d/b/a Pride of the Pond), Heartland Catfish Co., Guidry’s Catfish,
Inc., Delta Pride Catfish, Inc., Consolidated Catfish Cos. LLC (d/b/a Country
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 5 of 27

Consol. Court No. 18-00063 	Page 6
Select Catfish), America’s Catch, and Alabama Catfish, Inc. (d/b/a Harvest Select
Catfish, Inc.) (collectively, “Defendant-Intervenors” or “Catfish Farmers of
America”) responded. [Catfish Farmers of America’s] Comments Supp. of
Remand Results, ECF No. 84 (“Catfish Farmers of America Cmts.”). GODACO
and Consolidated Plaintiff Golden Quality Seafood Corp. filed the joint appendix.
J.A., ECF Nos. 85, 86 (“Joint Appendix”). GODACO filed two notices of
supplemental authority. Notice of Suppl. Authority, Dec. 8, 2020, ECF No. 87
(“First Suppl. Authority”); Notice of Suppl. Authority, Dec. 28, 2020, ECF No. 89
(“Second Suppl. Authority”).
ISSUES PRESENTED
This case presents the following issues:
1. 	Whether Commerce’s application of adverse facts available (“AFA”)
to GODACO is supported by substantial evidence;
2. 	Whether Commerce’s application of the AFA rate to GODACO is in
accordance with the law; and
3. 	Whether Commerce’s application of GODACO’s rate to Separate
Rate Plaintiffs is in accordance with the law.
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 6 of 27

Consol. Court No. 18-00063 	Page 7
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28
U.S.C. § 1581(c). The court will hold unlawful any determination found to be
unsupported by substantial evidence on the record or otherwise not in accordance
with the law. 19 U.S.C. § 1516a(b)(1)(B)(i).
DISCUSSION
I. 	Commerce’s Application of AFA to GODACO
The first issue addressed by the court is whether Commerce’s application of
AFA to GODACO is supported by substantial evidence. Plaintiff challenges
Commerce’s application of total AFA to GODACO, contending that 1) GODACO
provided all requested information to Commerce, and 2) GODACO cooperated to
the best of its ability. GODACO Cmts. at 3–23. Defendant argues that
Commerce’s determinations that GODACO failed to provide necessary
information and did not cooperate to the best of its ability in the administrative
proceeding are supported by substantial evidence and asks the court to sustain
Commerce’s application of total AFA to GODACO. Def. Cmts. at 13–28.
If necessary information is not available on the record, or an interested party:
(1) withholds information that has been requested, (2) fails to provide such
information by the deadlines for submission of the information or in the form and
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 7 of 27

Consol. Court No. 18-00063 	Page 8
manner requested, (3) significantly impedes a proceeding, or (4) provides such
information but the information cannot be verified, then Commerce may rely on
facts otherwise available. 19 U.S.C. § 1677e(a)(1), (2)(A)–(D). If a party fails to
cooperate to the best of its ability, Commerce may use an inference adverse to the
interests of that party in selecting from among the facts otherwise available. Id.
§ 1677e(b).
The U.S. Court of Appeals for the Federal Circuit has interpreted 19 U.S.C.
§ 1677e subsections (a) and (b) to have different purposes. See Mueller Comercial
de Mexico, S. de R.L. De C.V. v. United States (“Mueller”), 753 F.3d 1227, 1232
(Fed. Cir. 2014) (discussing 19 U.S.C. § 1677e(a)–(b)). Subsection (a) applies
whether or not any party has failed to cooperate fully with the agency in its
inquiry. Id. A respondent’s mere failure to furnish requested information—for
any reason—requires Commerce to resort to other sources of information to
complete the factual record. Id. Subsection (b) applies only when Commerce
makes a separate, additional determination that the respondent failed to cooperate
by not acting to the best of its ability. 19 U.S.C. § 1677e(b); see also Canadian
Solar Int’l Ltd. v. United States, 43 CIT __, __, 378 F. Supp. 3d 1292, 1320 (2019)
(noting that “Commerce must invoke subsection (a) to reach subsection (b)”). A
party fails to cooperate to the best of its ability when it does not “conduct prompt,
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 8 of 27

Consol. Court No. 18-00063 	Page 9
careful, and comprehensive investigations of all relevant records that refer or relate
to the imports in question to the full extent of [its] ability to do so.” Nippon Steel
Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003) (noting that
“intentional conduct, such as deliberate concealment or inaccurate reporting . . .
evinces a failure to cooperate”); see also Essar Steel Ltd. v. United States, 678 F.3d
1268, 1276 (Fed. Cir. 2012).
Commerce may consider an adverse inference when a respondent fails to
cooperate to the best of the respondent’s ability, regardless of motivation or intent.
Nippon Steel Corp., 337 F.3d at 1383. This standard does not require perfection
and recognizes that mistakes sometimes occur, but it does not condone
inattentiveness, carelessness, or inadequate record keeping. Papierfabrik August
Koehler SE v. United States, 843 F.3d 1373, 1379 (Fed. Cir. 2016) (quoting
Nippon Steel Corp., 337 F.3d at 1382). When making an adverse inference,
Commerce may rely on information derived from the petition, a final
determination in the investigation, a previous administrative review, or any other
information placed on the record. See 19 U.S.C. § 1677e(b)(2); 19 C.F.R.
§ 351.308(c).
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 9 of 27

Consol. Court No. 18-00063 	Page 10
A. 	Application of Facts Available for Farming Factors of
Production
Plaintiff argues that Commerce’s reliance on facts otherwise available for
GODACO’s farming factors of production is not supported by substantial
evidence. GODACO Cmts. at 3–8. GODACO asserts that compliance with
Commerce’s instruction to report all factors of production on a control number
(“CONNUM”)-specific basis is impossible for farming factors of production. 1 Id.
at 19–20. GODACO states that it reported correct CONNUM-specific farming
factors of production in the administrative review. Id. at 16. The court remanded
this issue because Commerce did not support its prior analysis with proper
explanations and citations to evidence in the administrative record. GODACO I,
44 CIT at __, 435 F. Supp. 3d at 1354–55.
On remand, Commerce relied upon 19 U.S.C. § 1677e(a)(1) and (2)(A)–(C)
to determine that the use of facts otherwise available was warranted and supported
its analysis with explanations and citations to the record. Remand Results at 6–8.
Commerce stated that GODACO was required to report its farming factors of
production on a CONNUM-specific basis but failed to do so. Id. at 7–8.
1 A CONNUM is a contraction of the term control number and is Commerce jargon for a unique
product (defined in terms of a hierarchy of specified physical characteristics determined in each
antidumping proceeding). Union Steel v. United States, 36 CIT 288, 291 (2012) (internal
quotation marks and citation omitted).
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 10 of 27

Consol. Court No. 18-00063 	Page 11
GODACO was required to provide Commerce with factors of production
information that reconciled to all of the CONNUMs at issue. GODACO I, 44 CIT
at __, 435 F. Supp. 3d at 1351–52; GODACO Suppl. Questionnaire Resp., PD
197–98, CD 158–59, CD 160–186 at 12 (July 17, 2017) (“GODACO’s SQR”)
(requesting CONNUM-specific reporting for all of GODACO’s factors of
production); IDM at 12 (noting that GODACO was to report factors of production
information on a CONNUM-specific basis); see also Mueller, 753 F.3d at 1232
(noting that regardless of the reason, a respondent’s failure to provide requested
information requires Commerce to resort to other sources of information).
Commerce explained that evidence on the record established that GODACO
reported its farming factors of production on a “harvested-whole-live-fish” basis
instead of the CONNUM-specific basis requested by Commerce. Remand Results
at 7–8; see, e.g., GODACO’s SQR, Ex. S-26(b) (data tables showing that the factor
of production ratios for fish feed are equivalent to the mass of each fingerling
category divided by the total mass of all harvested live fish); see also GODACO
Section D Questionnaire Resp., PD 127, CD 95–96 (Apr. 19, 2017), Ex. D-19
(relating to medicine, nutrition, environmental treatment, lime, and salt), Ex. D-20
(relating to labor), Ex. D-21 (relating to electricity), Ex. D-9.5, Ex. D-9.6 (also
demonstrating factors of production ratios calculated on the basis of all harvested
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 11 of 27

Consol. Court No. 18-00063 	Page 12
live fish) as Ex. S-26(b). GODACO concedes that it allocated its farming factors
of production on a “total harvested fish” basis. GODACO Cmts. at 17
(“GODACO clearly explained how it allocated all upstream farming inputs in its
vertically integrated operation over total harvested fish from each pond during the
[period of review].”).
This Court has found it reasonable for Commerce to require respondents to
report all factors of production on a CONNUM-specific basis, including inputs
such as farming factors of production. See An Giang Fisheries Imp. & Exp. Joint
Stock Co. v. United States (“An Giang”), 42 CIT __, __, 287 F. Supp. 3d 1361,
1367–71 (2018) (concerning the eleventh administrative review of the antidumping
duty order at issue here). Because Commerce cited substantial evidence on the
record establishing that GODACO failed to provide the required CONNUM-
specific information, the court finds that Commerce determined correctly to use
facts available. Remand Results at 7–8. In addition to GODACO’s failure to
provide requested CONNUM-specific reporting, this court previously sustained
Commerce’s determination that the record contained additional deficiencies,
including: 1) lack of reconciliation of GODACO’s factors of production
information with the CONNUMs at issue; 2) GODACO’s net weight reporting;
and 3) misallocated factors of production that co-mingled subject products with
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 12 of 27

Consol. Court No. 18-00063 	Page 13
non-subject products that had a higher water content. GODACO I, 44 CIT at __,
435 F. Supp. 3d at 1352. The court concludes that substantial evidence on the
record supports Commerce’s determination that GODACO failed to provide
necessary information pursuant to 19 U.S.C. § 1677e(a).
B. 	GODACO’s Lack of Cooperation to the Best of its Ability
The next inquiry is whether Commerce’s determination that GODACO
failed to cooperate by not acting to the best of its ability under 19 U.S.C.
§ 1677e(b) is supported by substantial evidence. GODACO argues that it
cooperated to the best of its ability because it was purportedly impossible to report
its farming factors of production on a CONNUM-specific basis. GODACO Cmts.
at 22–23. GODACO asserts that it implemented a CONNUM-specific
methodology and that any deficiencies in GODACO’s reporting are excusable
because it is the first respondent to the underlying antidumping duty order to
provide factors of production information in a CONNUM-specific format. Id. at 3,
9. Defendant responds that GODACO reported its factors of production on the
wrong basis and that the adverse inference is otherwise appropriate. Def. Cmts. at
21–28. The court remanded for Commerce to explain how its application of an
adverse inference was supported by substantial evidence under 19 U.S.C.
§ 1677e(b). GODACO I, 44 CIT at __, 435 F. Supp. 3d at 1355.
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 13 of 27

Consol. Court No. 18-00063 	Page 14
On remand, Commerce determined that GODACO failed to act to the best of
its ability to comply with Commerce’s requests for CONNUM-specific reporting.
Remand Results at 8–11. Commerce explained that GODACO failed to cooperate
“by not developing a methodology to report CONNUM-specific sales and cost
information (which is essential to the accurate calculation of GODACO’s dumping
margin), as Commerce requested on multiple occasions . . . .” Id. at 9. Commerce
stated that not only was necessary information missing from the record, but
respondents to the antidumping duty order had been on notice of the CONNUM-
specific reporting requirement for years and it was within GODACO’s ability to
provide such information. Id. at 9–10. This Court has recognized Commerce’s
requests for CONNUM-specific reporting since as early as the eighth
administrative review, noting that Commerce put respondents on advance notice
about the CONNUM-specific requirement. An Giang, 42 CIT at __, 287 F. Supp.
3d at 1369–70. The court in An Giang stated that “[g]iven the advance notice
afforded to respondents, the court cannot find that Commerce’s request for
CONNUM-specific reporting, here, was unreasonable . . . .” Id. at __, 287 F.
Supp. 3d at 1370 (referring to the eleventh administrative review). This case
concerns the thirteenth administrative review. Because respondents had advance
notice for several years of Commerce’s request for CONNUM-specific reporting,
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 14 of 27

Consol. Court No. 18-00063 	Page 15
the court holds that it was reasonable for Commerce to expect GODACO to
provide CONNUM-specific information and be more forthcoming with its
responses.
Commerce may apply an adverse inference in circumstances under which it
is reasonable for the agency “to expect that more forthcoming responses should
have been made.” Nippon Steel Corp., 337 F.3d at 1382. Commerce’s application
of an adverse inference is reasonable because Commerce expected that GODACO
would have collected and reported factors of production information on a
CONNUM-specific basis after giving respondents advance notice for several years
that CONNUM-specific information would be required in this administrative
review. Remand Results at 40–42.
To summarize, the court finds that Commerce’s determination that
GODACO failed to provide necessary information was supported by substantial
evidence, and it was appropriate under 19 U.S.C. § 1677e(a) to use facts otherwise
available. Furthermore, because GODACO failed to cooperate to the best of its
ability to obtain and produce the requested information, Commerce was justified in
concluding that GODACO had not acted to the best of its ability and reasonably
used an adverse inference under 19 U.S.C. § 1677e(b) in selecting the facts
otherwise available.
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 15 of 27

Consol. Court No. 18-00063 	Page 16
II. 	Commerce’s Application of the AFA Rate to GODACO
The second issue is whether Commerce’s application of the AFA rate of
$3.87 per kilogram to GODACO is in accordance with the law. The court
remanded this issue pending Commerce’s explanation of its adverse inference
determination. GODACO I, 44 CIT at __, 435 F. Supp. 3d at 1355, 1360.
On remand, Commerce continued to assign a rate of $3.87 per kilogram to
GODACO. Remand Results at 19. Commerce calculated the rate of $3.87 per
kilogram in a new shipper review conducted during the eighth administrative
review of the antidumping duty order at issue. Id. at 45. The $3.87 per kilogram
rate is the highest margin calculated in this proceeding. Id. at 3. GODACO argues
that the $3.87 per kilogram rate is aberrational because it exceeds the second-
highest rate by approximately $1.50 per kilogram and is based on a new shipper
review. GODACO Cmts. at 23–30. GODACO contends also that Commerce is
required to corroborate the AFA rate. Id. Defendant responds that the $3.87 per
kilogram rate is not aberrational or otherwise inappropriate and does not need to be
corroborated under the applicable statute. Def. Cmts. at 28–30.
If Commerce uses an inference that is adverse to the interests of a party
under 19 U.S.C. § 1677e(b)(1)(A) in selecting among the facts otherwise available,
then Commerce may use a dumping margin from any segment of the proceeding
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 16 of 27

Consol. Court No. 18-00063 	Page 17
under the antidumping order. 19 U.S.C. § 1677e(d); Zhejiang Zhaofeng Mech. &
Elec. Co. v. United States, 43 CIT __, __, 416 F. Supp. 3d 1395, 1401 (2019).
Under 19 U.S.C. § 1677e(c)(2), 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.”). Here, Commerce determined the rate applied to GODACO in the
eighth administrative review of the antidumping duty order, and subsequently
applied this rate to GODACO by application of facts available with an adverse
inference in the thirteenth administrative review. Remand Results at 45.
Commerce thus applied the rate from a separate segment of these proceedings and
was therefore under no obligation to corroborate.
Commerce may apply the highest rate based on Commerce’s evaluation of
the situation that resulted in Commerce’s use of an adverse inference in selecting
among the facts otherwise available. 19 U.S.C. § 1677e(d)(2) (“[T]he
administering authority may apply any of the countervailable subsidy rates or
dumping margins specified . . . including the highest such rate or margin, based on
the evaluation by the administering authority of the situation that resulted in the
administering authority using an adverse inference in selecting among the facts
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 17 of 27

Consol. Court No. 18-00063 	Page 18
otherwise available.”). Commerce supported its selection of the highest rate in the
Remand Results under 19 U.S.C. § 1677e(d)(2) by explaining that GODACO
provided information that was unusable to Commerce, failed to correct its deficient
reporting when it had the opportunity to do so, otherwise did not act to the best of
its ability, and failed to provide any record evidence undermining the
reasonableness of the use of the $3.87 per kilogram rate for total AFA. Remand
Results at 44–49. Because Commerce provided a sufficient evaluation of the
specific situation to justify its selection of the highest rate under 19 U.S.C.
§ 1677e(d)(2), the court concludes that Commerce’s selection of the AFA rate is in
accordance with the law. The court sustains Commerce’s selection of the $3.87
per kilogram rate for total AFA as applied to GODACO.
III. 	Commerce’s Application of GODACO’s AFA Rate to Separate
Rate Plaintiffs
The third issue before the court is whether the total AFA rate applied to
Separate Rate Plaintiffs is in accordance with the law. Consolidated Plaintiffs and
South Vina argue that Commerce’s application of GODACO’s total AFA rate to
Separate Rate Plaintiffs is unreasonable and not in accordance with the law.
Consol. Pls. Mot. for J. at 7–30; South Vina Mot. for J. at 7–13. The court did not
opine on this issue in GODACO I because the court remanded the issue of whether
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 18 of 27

Consol. Court No. 18-00063 	Page 19
GODACO’s rate was supported by substantial evidence. GODACO I, 44 CIT at
__, 435 F. Supp. 3d at 1360. The court directed Commerce to consider South
Vina’s arguments on remand after finding that South Vina did not fail to exhaust
its administrative remedies. Id.
On remand, Commerce considered South Vina’s and Consolidated
Plaintiffs’ substantive concerns under protest, arguing that South Vina failed to
exhaust its administrative remedies because South Vina did not submit comments
on the Final Results. Remand Results at 12. Commerce continued to determine
that the assignment of GODACO’s total AFA rate of $3.87 per kilogram to
Separate Rate Plaintiffs, including South Vina, was appropriate. Id. at 2.
GODACO is the only individually-examined respondent remaining under review
in this proceeding and received a total AFA rate, which Commerce applied to
cooperating Separate Rate Plaintiffs. Id. at 20, 48–49; Def. Cmts. at 12.
Commerce explained that it applied the “expected method” under Section
1673d(c)(5)(B), yet the court observes that Commerce also stated that it applied
“any reasonable method” under the statutory exception. Remand Results at 13; see
also Consol. Pls. Mot. for J. at 17–19 (Consolidated Plaintiffs note that Commerce
did not apply the “expected method” because it did not weight-average any rates
but rather used the “any reasonable method” approach). Commerce asserted that
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 19 of 27

Consol. Court No. 18-00063 	Page 20
the statute permits “the use of ‘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.’” Remand Results at 13.
Commerce stated that 19 U.S.C. § 1673d(c)(5)(B) permitted Commerce to
apply the AFA rate that Commerce selected for GODACO to Separate Rate
Plaintiffs. Id. at 12–20. Consolidated Plaintiffs counter that Commerce’s
determination is unlawful because Commerce’s application of GODACO’s AFA
rate to cooperating Separate Rate Plaintiffs is unreasonable. Consol. Pls. Mot. for
J. at 9. Consolidated Plaintiffs and South Vina contend that Commerce instead
should use the more reasonable rate of $0.69 per kilogram applied to cooperative
separate rate respondents in the immediately preceding administrative review. Id.
at 12; South Vina Mot. for J. at 11–13.
Commerce is authorized by statute to calculate and impose a dumping
margin on imported subject merchandise after determining it is sold in the United
States at less than fair value. 19 U.S.C. § 1673. Under the general rule of
§ 1673d(c)(5)(A), Commerce determines an all-others rate assigned to non-
examined companies by calculating the weighted average of the estimated
weighted average dumping margins established for exporters and producers
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 20 of 27

Consol. Court No. 18-00063 	Page 21
individually investigated, excluding any zero and de minimis margins, and any
margins determined entirely on the basis of facts available, including AFA. Id.
§ 1673d(c)(5)(A); see Albemarle Corp. & Subsidiaries v. United States, 821 F.3d
1345, 1351 (Fed. Cir. 2016). If the estimated weighted average dumping margins
established for all exporters and producers individually investigated are zero or de
minimis, or are determined entirely under 19 U.S.C. § 1677e, Commerce may
invoke an exception to establish a separate rate for exporters and producers not
individually investigated. 19 U.S.C. § 1673d(c)(5)(B). The Statement of
Administrative Action (“SAA”) provides guidance that when the dumping margins
for all individually examined respondents are determined entirely on the basis of
the facts available or are zero or de minimis, the “expected method” of determining
the all-others rate is to weight-average the zero and de minimis margins and
margins determined pursuant to the facts available, provided that volume data is
available. Uruguay Round Agreements Act, SAA, H.R. Doc. No. 103-316, vol. 1,
at 873 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4201. Commerce may depart
from the “expected method” and use “any reasonable method,” but only if
Commerce reasonably determines that the expected method is not feasible or
results in an average that would not be reasonably reflective of potential dumping
margins. See 19 U.S.C. § 1673d(c)(5)(B); Navneet Publ’ns (India) Ltd. v. United
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 21 of 27

Consol. Court No. 18-00063 	Page 22
States, 38 CIT __, __, 999 F. Supp. 2d 1354, 1358 (2014) (“[T]he following
hierarchy [is applied] when calculating all-others rates—(1) the ‘[g]eneral rule’ set
forth in § 1673d(c)(5)(A), (2) the alternative ‘expected method’ under
§ 1673d(c)(5)(B), and (3) any other reasonable method when the ‘expected
method’ is not feasible or does not reasonably reflect potential dumping
margins.”); see also SAA at 873, reprinted in 1994 U.S.C.C.A.N. at 4201;
Albemarle Corp., 821 F.3d at 1351–52 (quoting SAA at 873, reprinted in 1994
U.S.C.C.A.N. at 4201). Commerce must determine that the expected method is not
feasible or would not be reasonably reflective of the potential dumping margins for
non-investigated exporters or producers based on substantial evidence. Albemarle
Corp., 821 F.3d at 1352–53; see also Changzhou Hawd Flooring Co. v. United
States, 848 F.3d 1006, 1012 (Fed. Cir. 2017). The exception in 19 U.S.C.
§ 1673d(c)(5)(B) applies expressly to market economy proceedings but has been
extended to non-market economy proceedings as well. Albemarle Corp., 821 F.3d
at 1352 n.6.
Commerce determined on remand that the expected method:
demonstrates that the Act clearly envisions that Commerce base the
separate rate on the experience of all of the individually examined
respondents, including those assigned an AFA rate, where all of the
dumping margins calculated for the individually examined respondents
are zero, de minimis, or based entirely on facts available.
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 22 of 27

Consol. Court No. 18-00063 	Page 23
Remand Results at 13. Commerce stated that its assignment of GODACO’s AFA
rate to Separate Rate Plaintiffs was consistent with legal precedent and
Commerce’s practice. Id. Commerce contended that the rate assigned to Separate
Rate Plaintiffs was reflective of the potential dumping margin because it
represented the period of review dumping margin assigned to the sole individually-
examined respondent. Id. at 19–20.
The court observes that Commerce did not appear to employ the “expected
method” of determining the all-others rate in this case, as Commerce did not
weight-average the zero and de minimis margins and margins determined pursuant
to the facts available, but Commerce instead applied the “any reasonable method”
approach by using the one rate determined pursuant to AFA as the all-others rate
applied to Separate Rate Plaintiffs. Id. Because Commerce departed from the
“expected method” and employed the “any reasonable method” approach,
Commerce was required first to demonstrate that the expected method was not
feasible or resulted in an average that would not be reasonably reflective of the
potential dumping margins, which Commerce did not do here. See 19 U.S.C.
§ 1673d(c)(5)(B).
Notwithstanding Commerce’s failure to substantiate its departure from the
“expected method,” the court considers whether Commerce’s use of the “any
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 23 of 27

Consol. Court No. 18-00063 	Page 24
reasonable method” approach to apply GODACO’s total AFA rate to Separate
Rate Plaintiffs is in accordance with the law. Commerce did not cite any record
evidence to support the reasonableness of GODACO’s total AFA rate of $3.87 per
kilogram as applied to cooperative Separate Rate Plaintiffs. Commerce stated
merely that the relevant statutes and caselaw did not prohibit the use of an AFA
rate under the expected method, that the AFA rate was contemporaneous due to its
application to GODACO in the same administrative review, and that GODACO’s
rate represented the dumping margin assigned to the sole individually-examined
respondent remaining in the administrative review. Remand Results at 13–20. To
the contrary, although it is not their burden to provide such evidence, Consolidated
Plaintiffs cite record evidence of an apparently more reasonable rate of $0.69 per
kilogram that was assigned to separate rate respondents in the prior twelfth
administrative review. Consol. Pls. Mot. for J. at 17–18. Consolidated Plaintiffs
assert that GODACO’s AFA rate was derived from a rate calculated five years
prior to the present administrative review and was neither timely nor reasonably
reflective of Separate Rate Plaintiffs’ potential dumping margins. Consol. Pls.
Mot. for J. at 26. Consolidated Plaintiffs and South Vina note that Commerce in
the past has determined that it was reasonable to carry forward rates from prior
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 24 of 27

Consol. Court No. 18-00063 	Page 25
reviews in other administrative proceedings. Consol. Pls. Mot. for J. at 24–25;
South Vina Mot. for J. at 11–13.
Commerce is required to support its application of the “any reasonable
method” exception in 19 U.S.C. § 1673d(c)(5)(B) by demonstrating that the
calculated margin is reasonable. The rate selected must serve the purpose of
calculating dumping margins as accurately as possible. The court concludes that
Commerce’s determination to apply a total AFA rate to fully cooperating Separate
Rate Plaintiffs is unreasonable and unsupported by any evidence on the record. To
the contrary, the court observes that evidence on the record suggests instead that
Separate Rate Plaintiffs’ rate may be reasonably closer to the $0.69 per kilogram
rate assigned to separate rate respondents in the prior twelfth administrative
review, rather than the total AFA rate of $3.87 per kilogram from the thirteenth
administrative review.
The court remands Commerce’s assignment of the total AFA rate to fully
cooperating Separate Rate Plaintiffs as unreasonable and not in accordance with
the law. The court directs Commerce to reevaluate the rate applied to Separate
Rate Plaintiffs in light of the evidence on the record as a whole and in accordance
with this opinion.
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 25 of 27

Consol. Court No. 18-00063 	Page 26
CONCLUSION
For the foregoing reasons, the court sustains in part and remands in part
Commerce’s Remand Results.
Accordingly, it is hereby
ORDERED that the Remand Results are remanded to Commerce to
reevaluate its determination regarding the dumping margin for Separate Rate
Plaintiffs; and it is further
ORDERED that Commerce shall afford the parties at least twelve (12)
business days to comment on the draft second remand results; and it is further
ORDERED that this case shall proceed according to the following schedule:
1. 	Commerce shall file the second remand results on or before March 5,
2021;
2. 	Commerce shall file the administrative record on or before March 19,
2021;
3. 	Comments in opposition to the second remand results shall be filed on
or before April 23, 2021;
4. 	Comments in support of the second remand results shall be filed on or
before May 28, 2021; and
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 26 of 27

Consol. Court No. 18-00063 	Page 27
5. 	The joint appendix shall be filed on or before June 18, 2021.
/s/ 	Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: 	January , 2021
New York, New York
Case 1:18-cv-00063-JCG Document 90 Filed 01/06/21 Page 27 of 27