                                             Slip Op. 14-87

                 UNITED STATES COURT OF INTERNATIONAL TRADE


 NAVNEET PUBLICATIONS (INDIA)
 LTD., MARISA INTERNATIONAL,
 SUPER IMPEX, PIONEER STATIONARY                          Before: Richard W. Goldberg, Senior Judge
 PVT. LTD., SGM PAPER PRODUCTS,                           Court No. 13-00204
 LODHA OFFSET LIMITED, and MAGIC
 INTERNATIONAL PVT. LTD.,                                 PUBLIC VERSION

                               Plaintiffs,

 v.

 UNITED STATES,
                               Defendant,

 and

 ASSOCIATION OF AMERICAN SCHOOL
 PAPER SUPPLIERS,

                       Defendant-Intervenor.



                                   OPINION AND ORDER

[Remanding the final results of an administrative review of an antidumping duty order on certain
lined paper products from India.]

Dated: July 22, 2014

       Neil R. Ellis, Richard L.A. Weiner, and Rajib Pal, Sidley Austin LLP, of Washington,
DC, for plaintiffs.

       Antonia R. Soares, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for defendant. With her on the brief were Stuart F.
Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy,
Assistant Director. Of counsel on the brief was Elika Eftekhari, Office of the Chief Counsel for
Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

      Alan H. Price, Timothy C. Brightbill, and Maureen E. Thorson, Wiley Rein LLP, of
Washington, DC, for defendant-intervenor.
Court No. 13-00204                                                                 Page 2


       Goldberg, Senior Judge: In this action, Plaintiffs Navneet Publications (India) Ltd.

(“Navneet”), Marisa International, Super Impex, Pioneer Stationary Pvt. Ltd., SGM Paper

Products, Lodha Offset Limited, and Magic International Pvt. Ltd. (collectively, “Plaintiffs”)

raise various challenges to the all-others rate that the U.S. Department of Commerce

(“Commerce”) imposed in the fifth administrative review of the antidumping duty order on

certain lined paper products from India. See Certain Lined Paper Products from India, 78 Fed.

Reg. 22,232 (Dep’t Commerce Apr. 15, 2013) (final admin. review) (“Final Results”). Plaintiffs

have moved for judgment on the agency record pursuant to USCIT Rule 56.2. See Pls.’ Mot. for

J. on Agency R., ECF No. 34 (“Pls.’ Br.”). For reasons discussed below, the court grants

Plaintiffs’ motion in part and remands a portion of Commerce’s Final Results.

                                        BACKGROUND

       On October 31, 2011, Commerce initiated an administrative review of the antidumping

duty order on certain lined paper products from India. See Initiation of Antidumping and

Countervailing Duty Administrative Reviews, 76 Fed. Reg. 67,133 (Dep’t Commerce Oct. 31,

2011). The review period ran from September 1, 2010 through August 31, 2011 and covered

fifty-seven Indian producers and exporters of the subject merchandise. Id. at 67,134–35.

       As part of its respondent selection process, Commerce issued quantity and value

(“Q&V”) questionnaires to thirteen of the firms for which a review had been initiated.

Commerce selected the firms on the basis of Customs and Border Protection data documenting

companies that imported subject merchandise into the United States during the review period.

See Resp’t Selection Mem. 4, PD 61 at bar code 3053175-01 (Jan. 20, 2012), ECF No. 30 (July

23, 2013) (“Resp’t Selection Mem.”). Only eight of the companies responded to the Q&V

questionnaires. Id. One company that responded, Plaintiff Navneet, had also requested
Court No. 13-00204                                                                   Page 3
individual examination as either a mandatory or voluntary respondent. Voluntary Resp’t

Request 1–2, PD 14 at bar code 3043588-01 (Nov. 29, 2011), ECF No. 30 (July 23, 2013).

       Commerce determined that it could not individually examine all fifty-seven companies

subject to the review and instead limited its review to the two respondents accounting for the

largest known volume of subject merchandise. Resp’t Selection Mem. 8. The two individually

investigated respondents were Riddhi Enterprises (“Riddhi”) and SAB International (“SAB”),

and Commerce preliminarily assigned those companies weighted average dumping margins of

3.86% and 2.30%, respectively. See Certain Lined Paper Products from India, 77 Fed. Reg.

61,381, 61,382 (Dep’t Commerce Oct. 9, 2012) (prelim. admin. review) (“Preliminary Results”).

       In the Preliminary Results, Commerce also applied an adverse facts available (“AFA”)

rate of 36.27% to the five companies that failed to respond to Commerce’s Q&V questionnaires.

Id. The AFA rate derived from the highest non-aberrational margin calculated for mandatory

respondent Riddhi during the review. See Prelim. AFA Mem. 1, PD 140 at bar code 3099879-01

(Oct. 1. 2012), ECF No. 30 (July 23, 2013). For the remaining companies that were neither

individually investigated nor subject to an AFA rate (including all Plaintiffs), Commerce

preliminarily calculated an all-others rate of 3.36%. Preliminary Results, 77 Fed. Reg. at 61,382.

Relying on 19 U.S.C. § 1673d(c)(5)(A) (2006), Commerce arrived at the all-others rate by

weight averaging the weighted average dumping margins of Riddhi and SAB. See Preliminary

Results at 61,382 n.1. That statute governs the calculation of all-others rates in investigations,

which are usually based on individually investigated respondent rates unless those rates are zero,

de minimis, or based entirely on facts available. See 19 U.S.C. § 1673d(c)(5)(A).

       Navneet subsequently submitted a rebuttal brief, anticipating that both Riddhi’s and

SAB’s margins might fall below a de minimis threshold in the Final Results and that Commerce
Court No. 13-00204                                                                 Page 4
would need to use an alternative all-others rate methodology. See Navneet Rebuttal Br. 1, PD

172 at bar code 3109445-01 (Dec. 7, 2012), ECF No. 30 (July 23, 2013) (“Navneet Rebuttal

Br.”). In its brief, Navneet requested that Commerce continue to calculate the all-others rate by

averaging Riddhi’s and SAB’s rates, even if those rates later became zero or de minimis. Id.

Navneet advocated this method because it believed that it would have received a zero margin if

individually reviewed. Id. at 9. In support, Navneet argued that (1) it would have received zero

margins in all other reviews if not for Commerce’s prior practice of zeroing negative dumping

margins, and (2) Navneet’s sales and pricing patterns probably closely resembled those of Riddhi

and SAB because it self-requested review. Id. at 9–10.

       Commerce published the Final Results of its review on April 15, 2013. See 78 Fed. Reg.

at 22,232. As Navneet anticipated, Commerce revised the margins for Riddhi and SAB down to

zero. See id. at 22,234. Commerce also calculated a new AFA rate of 22.02% (again, based on

Riddhi data) and reduced the number of uncooperative respondents subject to that AFA rate to

four. Id. However, Commerce did not adopt Navneet’s proffered method for calculating the all-

others rate. Instead of assigning the remaining fifty-one companies a margin of zero percent,

Commerce calculated a margin of 11.01%—the simple average of the zero percent rates assigned

to the two mandatory respondents and the 22.02% AFA rates assigned to two of the

uncooperative respondents. Id. at 22,233. The instant case ensued.

          SUBJECT MATTER JURISDICTION AND STANDARD OF REVIEW

       This Court has jurisdiction pursuant to 28 U.S.C. § 1581(c) and must uphold Commerce’s

determination unless it is “unsupported by substantial evidence on the record, or otherwise not in

accordance with the law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Record evidence is substantial if a

reasonable mind would accept it as adequate to support a conclusion. Nippon Steel Corp. v.
Court No. 13-00204                                                                    Page 5
United States, 337 F.3d 1373, 1379 (Fed. Cir. 2003). The Court reviews the substantiality of the

evidence “by considering the record as a whole, including evidence that supports as well as

evidence that ‘fairly detracts from the substantiality of the evidence.’” Huaiyin Foreign Trade

Corp. v. United States, 322 F.3d 1369, 1374 (Fed. Cir. 2003) (quoting Atl. Sugar, Ltd. v. United

States, 744 F.2d 1556, 1562 (Fed. Cir. 1984)).

         The Court applies the rubric established in Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842–43 (1984), to assess whether Commerce’s statutory

construction accords with law. Specifically, the Court determines whether Congress has directly

spoken to the question at issue. Id. If Congress’s intent is clear, the Court must give effect to

that unambiguously expressed intent. Id. However, if the statute is silent or ambiguous, the

Court assesses whether Commerce’s interpretation “is based on a permissible construction of the

statute.” Id. at 843.

                                           DISCUSSION

         Plaintiffs raise two challenges to Commerce’s calculation of the all-others rate in this

review. Plaintiffs first contend that Commerce unlawfully incorporated an AFA rate assigned to

uncooperative, uninvestigated respondents into the all-others rate calculation. Plaintiffs

alternatively assert that the all-others rate did not reflect economic reality for uninvestigated

respondents and that Commerce’s methodology was, thus, unreasonable. As set forth below, the

court denies Plaintiffs’ motion as it pertains to the first issue, but agrees that Commerce did not

support its all-others rate with substantial evidence and remands for further consideration.

    I.      Legal framework for the calculation of “all-others” rates in antidumping duty
            administrative reviews

         In administrative reviews, Commerce “review[s] . . . and determine[s] . . . the amount of

any antidumping duty” and assesses final duties for companies for which a review has been
Court No. 13-00204                                                                               Page 6
requested. 19 U.S.C. § 1675(a)(1)(B). However, Commerce need not investigate every

company subject to a review if Commerce reasonably determines that calculation of individual

dumping margins is not practicable due to the large number of respondents. Id. § 1677f-1(c)(2).

If Commerce reaches that conclusion, it may limit its review to a sample of mandatory

respondents (often accounting for the largest export volumes of subject merchandise). See id.

        To arrive at margins for uninvestigated, cooperative respondents, Commerce calculates

an all-others rate using the methodology found at 19 U.S.C. § 1673d(c)(5). Although

§ 1673d(c)(5) expressly applies only to investigations, Commerce also uses that statute to inform

its analysis in administrative reviews. See I&D Mem. 13, PD 188 at bar code 3129602-01 (Apr.

9, 2013), ECF No. 30 (July 23, 2013) (“I&D Mem.”).

        Section 1673d(c)(5)(A) instructs Commerce as a “[g]eneral rule” to calculate all-others

rates using the weighted average of the weighted average dumping margins established for

individually investigated respondents, excluding any zero or de minimis rates and rates based

entirely on facts available. If no rates remain after making these exclusions, the statute directs

Commerce to use “any reasonable method.” Id. § 1673d(c)(5)(B). The Statement of

Administrative Action (“SAA”) accompanying the Uruguay Round Agreements Act1 clarifies

that the “expected method” under § 1673d(c)(5)(B) “will be to weight-average the zero and de

minimis margins and margins determined pursuant to the facts available [calculated for

individually investigated companies], provided that volume data is available.” See H.R. Rep.

No. 103-316 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4201. However, “if this method is

not feasible, or if it results in an average that would not be reasonably reflective of potential




        1
           Congress recognizes the SAA as “an authoritative expression by the United States concerning the
interpretation and application” of the Uruguay Round Agreements Act. 19 U.S.C. § 3512(d).
Court No. 13-00204                                                                  Page 7
dumping margins for non-investigated exporters or producers, Commerce may use other

reasonable methods.” Id.

         To summarize, then, § 1673d(c)(5) and the SAA collectively establish the following

hierarchy 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 19 U.S.C. § 1673d(c)(5); SAA, 1994 U.S.C.C.A.N. at

4201. Notably, while a particular method may be reasonable as a legal matter, the method may

still be unreasonable as applied in a particular case. See Yangzhou Bestpak Gifts & Crafts Co. v.

United States, 716 F.3d 1370, 1378 (Fed. Cir. 2013). As a result, remand may be necessary

when Commerce’s all-others rate is unsupported by substantial evidence demonstrating that the

rate reflects economic reality for uninvestigated respondents. Id. (noting same regarding

separate rates, which Commerce calculates like all-others rates).

   II.      Commerce’s method for calculating the all-others rate in this case was not
            unreasonable as a matter of law

         Because the rates calculated for the mandatory respondents in this case were zero,

Commerce proceeded under the “reasonable method” standard of § 1673d(c)(5)(B). However,

instead of calculating a rate based exclusively on individually investigated respondents’

(Riddhi’s and SAB’s) zero margins, Commerce calculated the all-others rate by taking the simple

average of Riddhi’s and SAB’s zero percent rates and the 22.02% AFA rates assigned to two of

the uncooperative respondents. See Final Results, 78 Fed. Reg. at 22,233. A threshold issue in

this case is whether that method was unreasonable as a matter of law. Plaintiffs claim that

Commerce contravened law (1) by incorporating an AFA rate into the all-others rate, or (2) at a
Court No. 13-00204                                                                  Page 8
minimum, by incorporating into the all-others rate an AFA rate assigned to uncooperative, non-

mandatory respondents. The court addresses each argument in turn.

       A. 19 U.S.C. § 1677e does not render Commerce’s methodology unlawful

       Plaintiffs first contend that the method Commerce selected to calculate the all-others rate

in this case was unlawful because it violated another statute, 19 U.S.C. § 1677e. Pls.’ Br. 12–16.

Section 1677e governs the use of facts otherwise available to complete a deficient record and, in

certain circumstances, authorizes an adverse inference when selecting among facts otherwise

available. Specifically, the use of an adverse inference against an interested party under

§ 1677e(b) necessitates a threshold finding that the “interested party has failed to cooperate by

not acting to the best of its ability to comply with a request for information.” According to

Plaintiffs, Commerce unlawfully partially based its all-others rate on an adverse inference even

though Plaintiffs fully cooperated with Commerce’s requests in the underlying review.

       The court disagrees. As previously noted, the all-others rate statute expressly permits the

inclusion of facts available rates. See 19 U.S.C. § 1673d(c)(5)(B); SAA, 1994 U.S.C.C.A.N. at

4201. Specifically, § 1673d(c)(5)(B) accords Commerce discretion to select among a variety of

reasonable methods, including “weight-averag[ing] the zero and de minimis margins and

margins determined pursuant to the facts available.” See SAA, 1994 U.S.C.C.A.N. at 4201

(emphasis added). For that reason, the Federal Circuit has already rejected the argument that

AFA rates may not be incorporated into the all-others rate. See Yangzhou, 716 F.3d at 1378

(rejecting a similar argument because “§ 1673d(c)(5)(B) and the SAA explicitly allow

Commerce to factor both de minimis and AFA rates into the calculation methodology”). In sum,

had Congress intended to disallow AFA rates in this context, it would not have specifically

authorized the use of such rates.
Court No. 13-00204                                                                    Page 9
       Plaintiffs maintain that a different result is warranted because this case involves an

administrative review and 19 U.S.C. § 1673d(c)(5) speaks only to investigations. According to

Plaintiffs, § 1673d(c)(5) operates as a “carve-out or exception to the general rules concerning the

application of adverse inferences set forth in 19 U.S.C. § 1677e(b).” Pls.’ Reply in Supp. of

Mot. for J. on Agency R., ECF No. 46 (“Pls.’ Reply Br.”), at 6. Plaintiffs aver that when

§ 1673d(c)(5) is not directly applicable (i.e., in an administrative review), the “carve-out or

exception” disappears and § 1677e(b) applies with full force to preclude the use of any adverse

inferences in the all-others rate. Id. Otherwise stated, Plaintiffs submit that inclusion of an AFA

rate may be lawful when calculating an all-others rate in an investigation, but it is necessarily

unlawful when calculating an all-others rate in a review.

       The court does not read the relevant statutes to require this result. Though § 1673d(c)(5)

explicitly references investigations, nothing in that statute or in any other statute expressly or

impliedly precludes application to administrative reviews. As a result, Commerce has

considerable discretion when selecting among possible methodologies. Although Plaintiffs

acknowledge Commerce’s discretion, they essentially maintain that Commerce could never

reasonably exercise that discretion to follow the methodology from the only statute that

addresses the calculation of all-others rates in antidumping duty proceedings—§ 1673d(c)(5).

See Pls.’ Reply Br. 5–6 (noting that such a methodology would be “manifestly impermissible

under the second step of the Chevron analysis”). Plaintiffs offer no persuasive justification for

this incongruous result, which conflicts with Commerce’s established practice and Federal

Circuit case law. See I&D Mem. 13 (noting Commerce’s practice of using § 1673d(c)(5) as

“guidance” in administrative reviews); Yangzhou, 716 F.3d at 1378. Indeed, as noted, the

Federal Circuit in Yangzhou summarily rejected the argument that Commerce may never use an
Court No. 13-00204                                                                                  Page 10
AFA rate when deriving a “separate rate”2 for cooperative, uninvestigated respondents in non-

market economy proceedings. See 716 F.3d at 1378. The Federal Circuit reached this

conclusion even though—similar to here—§ 1673d(c)(5) is silent on the calculation of separate

rates. See Baroque Timber Indus. (Zhongshan) Co. v. United States, 38 CIT __, __, 971 F. Supp.

2d 1333, 1340 n.19 (2014) (noting, in non-market economy investigation, that no statute directly

speaks to the calculation of dumping margins for separate rate companies). This court is

similarly unpersuaded that it is per se unreasonable to partially incorporate an AFA rate into an

all-others rate in an administrative review.3




         2
          In non-market economy proceedings, an uninvestigated company that establishes a certain degree of
independence from government control may receive a separate rate from the country-wide rate otherwise assessed
against uninvestigated companies operating within the non-market economy. See, e.g., Yangzhou, 716 F.3d at
1373–74. Commerce calculates that “separate rate” using the framework from 19 U.S.C. § 1673d(c)(5). Id. at 1374.
         3
           Plaintiffs rely on a series of distinguishable cases to support the argument that Commerce may not
lawfully incorporate AFA rates under § 1673d(c)(5) absent a finding of non-cooperation on the part of the
uninvestigated parties. See Pls.’ Br. 13–16; Pls.’ Reply Br. 10–12. Initially, SKF USA Inc. v. United States, 33 CIT
1866, 675 F. Supp. 2d 1264 (2009), did not even involve the calculation of all-others rates or separate rates. The
cases that did address such rates also do not directly support Plaintiffs’ proposition.
          For example, Plaintiffs cite Yantai Oriental Juice Co. v. United States, 27 CIT 477, 487 (2003), for the
proposition that a cooperating respondent’s “failure to be selected [as a mandatory respondent] is an insufficient
basis for the application of AFA” and that a “finding of non-cooperation is required.” Pls.’ Reply Br. 10. However,
Yantai cannot reasonably be read to establish that proposition. Though the Yantai court remanded an all-others rate
that was partially derived from a country-wide AFA rate, the court found only that Commerce did not rationally
connect the resulting margins to separate rate respondents’ likely dumping margins. See 27 CIT at 487–88. The
court never found that Commerce was legally barred from using AFA rates at all.
          Amanda Foods (Vietnam) Ltd. v. United States, 33 CIT 1407, 647 F. Supp. 2d 1368 (2009) (“Amanda I”),
is distinguishable for similar reasons. In Amanda I, Commerce assigned separate rate companies the rates that those
companies had received in prior proceedings under the order. Id. at 1411, 647 F. Supp. 2d at 1374–75 Although
both mandatory respondents received de minimis rates, Commerce declined to weight average those margins
because thirty-five companies received AFA rates and the record was devoid of data regarding those companies’
market shares or pricing practices. See id. at 1420, 647 F. Supp. 2d at 1381. Though the court expressed concern
with using data from prior proceedings due solely to the presence of uncooperative respondents, the court never
found that Commerce could not lawfully incorporate an AFA rate into its calculations (and because Commerce
relied on previously-calculated rates, Amanda I did not even concern that precise issue). See id.
          Ultimately, nothing in 19 U.S.C. § 1673d(c)(5)(B) limits Commerce’s use of AFA rates to situations in
which the all-others rate respondents have been uncooperative. While there may be legitimate concerns about
whether including such rates accurately reflects uninvestigated respondents’ pricing practices, that issue is addressed
elsewhere in this opinion.
Court No. 13-00204                                                                    Page 11
       B. 19 U.S.C. § 1673d(c)(5)(B)’s “reasonable method” standard does not, as a matter
          of law, preclude the incorporation of AFA rates assigned to uninvestigated,
          uncooperative respondents

       Plaintiffs alternatively argue that § 1673d(c)(5)(B)’s reasonable method standard does not

permit the inclusion of an AFA rate assigned to uncooperative, uninvestigated respondents. See

Pls.’ Br. 17–18. Thus, while the statute may in certain circumstances permit the inclusion of an

AFA rate, Plaintiffs submit that the only permissible AFA rate would be one calculated for an

investigated respondent. In support of this argument, Plaintiffs cite Changzhou Wujin Fine

Chemical Factory Co. v. United States, 701 F.3d 1367 (Fed. Cir. 2012).

       But the court disagrees that Changzhou establishes Plaintiffs’ proposition. In that case,

Commerce was tasked with calculating a separate rate for cooperative, uninvestigated

respondents in a non-market economy investigation. See id. at 1370. Applying the expected

alternative method under 19 U.S.C. § 1673d(c)(5)(B), Commerce originally based the separate

rate on a simple average of the de minimis rate assigned to one mandatory respondent (Wujin

Water) and a total AFA rate assigned to the remaining mandatory respondent (Kewei). Id. at

1372. However, Commerce found on voluntary remand that it could no longer corroborate the

AFA rate assigned to Kewei. Id. at 1372–73. In its place, Commerce calculated a “new,

hypothetical AFA rate” based on Wujin Water’s verified normal value data and unverified U.S.

price data taken from a non-cooperating exporter of subject merchandise. Id. at 1373.

Commerce calculated this rate solely for incorporation into its separate rate calculations and the

separate rate respondents were the only parties affected by the hypothetical rate. Id. Commerce

also intentionally selected its data points to avoid a de minimis result, finding that result “would

not be sufficiently adverse as to effectuate the purpose of the facts available rule to induce

respondents” to comply with Commerce’s requests. Id. at 1378 (emphasis omitted).
Court No. 13-00204                                                                   Page 12
       When employing this methodology, Commerce apparently felt that its “hands [were]

tied” by § 1673d(c)(5)(B)’s expected method of averaging the individually investigated

respondents’ de minimis and AFA rates. Id. The Federal Circuit disagreed. The court found that

the only AFA rates contemplated under that paragraph “are those determined for ‘individually

investigated’ parties,” and Commerce’s hypothetical AFA rate was not assigned to any

individually investigated party (though it was a proxy for Kewei’s AFA rate). See id. at 1379.

Ultimately, the Federal Circuit found that Commerce had a “duty . . . to select a method

appropriate for the circumstances” and that the method Commerce selected was inappropriate.

Id. Specifically, the Federal Circuit found that Commerce could not reasonably “cherry-pick[]”

data points with the sole purpose of increasing the margin for cooperative separate rate

respondents. Id.

       The Federal Circuit never found that Commerce was legally barred from using an AFA

rate calculated for and assigned to an uninvestigated respondent in its separate rate calculations.

Rather, the court found that Commerce could not elevate the averaging methodology of

§ 1673d(c)(5)(B) above other, more reasonable methods when the AFA rate at issue was only

applied to adversely increase the margin for cooperative respondents and was not even calculated

for an “individually investigated” company. See id.

       By contrast, the AFA rate here was not hypothetical and Commerce did not purport to

proceed under § 1673d(c)(5)(B)’s averaging methodology. The rate was actually applied to

uncooperative respondents and derived from data that Riddhi submitted during the proceeding.

Final Results, 78 Fed Reg. at 22,233. “Although . . . questionable in terms of economic reality,

this court detects no legal error in” Commerce’s method viewed against the “lenient”

requirement that the method simply be reasonable. See Yangzhou, 716 F.3d at 1378. Indeed, the
Court No. 13-00204                                                                                  Page 13
court has previously found lawful a similar methodology. Baroque, 38 CIT at __, 971 F. Supp.

2d at 1339, 1341 (finding, in a case where all mandatory respondents received zero margins, that

it was “not per se unreasonable” for Commerce to calculate separate rates by simple averaging

mandatory respondent rates and an AFA rate applied to the country-wide entity).4

    III.       Commerce’s calculation method was arbitrary and unsupported by substantial
               evidence and was, accordingly, unreasonable as applied

           “Nevertheless, ‘[w]hile various methodologies are permitted by the statute, it is possible

for the application of a particular methodology to be unreasonable in a given case.’” Yangzhou,

716 F.3d at 1378 (quoting Thai Pineapple Canning Indus. Corp. v. United States, 273 F.3d 1077,

1085 (Fed. Cir. 2001)). Thus, the court must consider Plaintiffs’ secondary argument that

substantial evidence does not support the reasonableness of Commerce’s methodological choice

in this case. Specifically, the court must determine whether Commerce “articulate[d] a

satisfactory explanation for its action” that is not based on “mere conjecture or supposition.” Id.

(quoting, in part, 19 U.S.C. § 1677(7)(F)(ii)).

           In undertaking this assessment, “‘form should be disregarded for substance and the

emphasis should be on economic reality.’” United States v. Eurodif S.A., 555 U.S. 305, 317–18

(2009) (quoting Tcherepnin v. Knight, 389 U.S. 332, 336 (1967)). This is because Commerce’s

overriding purpose in administering antidumping law is to accurately calculate dumping margins.

Yangzhou, 716 F.3d at 1379. In the same vein, to be supported by substantial evidence, “rate

determinations for nonmandatory, cooperating separate rate respondents must . . . bear some


           4
          Plaintiffs alternatively contend that even if it were permissible to include AFA rates assigned to
uninvestigated respondents in an investigation, it would not be permissible to do so in an administrative review
because of the comparatively greater emphasis on precision in administrative reviews. Pls.’ Reply Br. 16–17.
While the court agrees that investigations and administrative reviews differ in certain ways, those differences are
unimportant in this context because Commerce must always ensure that its “reasonable method” under
§ 1673d(c)(5)(B) reflects economic reality and results in margins that are as accurate as possible. See Yangzhou,
716 F.3d at 1379–80 (citing, in part, Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed. Cir. 1990)).
Thus, there are other safeguards that protect against arbitrary, excessively imprecise results.
Court No. 13-00204                                                                              Page 14
relationship to their actual dumping margins.” See id. at 1380. As set forth below, the court

finds that the record does not support Commerce’s action.

        At the administrative level, Commerce identified several facts purportedly supporting its

methodological choice in this case. First, Commerce noted that the general rule identified in

§ 1673d(c)(5)(A) was unavailable because both Riddhi and SAB received zero margins in the

Final Results. See I&D Mem. 13. Commerce further found that it could not apply its preferred,

alternative “reasonable method” of using margins previously calculated for respondents because

those margins were the product of “zeroing,”5 and Commerce no longer zeroes in administrative

reviews. Id. at 14. Thus, Commerce opted for the simple average of Riddhi’s and SAB’s zero

rates and two AFA rates assigned to the respondents that did not respond to Commerce’s Q&V

questionnaire. Id. Commerce justified this choice by first concluding that it could not conduct a

full respondent selection analysis without possessing complete Q&V responses. Id. Without

conducting a full analysis, Commerce did not know whether it would have selected two

uncooperative companies instead of Riddhi and SAB for individual review. Id. And because

Commerce might have selected other respondents if it had a complete universe of Q&V data,

Commerce could not conclude that Riddhi’s and SAB’s zero rates approximated the pricing

behavior of the uninvestigated, cooperative respondents. Id.

        That explanation, without more, did not rise to the level of substantial evidence

supporting Commerce’s methodological choice in this case. See Baroque, 38 CIT at __, 971 F.

Supp. 2d at 1343 (“The mere presence of non-cooperating parties ‘fails to justify [Commerce’s]

choice of dumping margin for the cooperative uninvestigated respondents.’” (quoting Amanda I,


        5
         Zeroing is the practice whereby “negative dumping margins (i.e., margins of sales of merchandise sold at
nondumped prices) are given a value of zero and only positive dumping margins (i.e., margins for sales of
merchandise sold at dumped prices) are aggregated.” Union Steel v. United States, 713 F.3d 1101, 1104 (Fed. Cir.
2013).
Court No. 13-00204                                                                  Page 15
33 CIT at 1420, 647 F. Supp. 2d at 1381)). Initially, Commerce’s rationale relied exclusively on

the fact that limited data prevented Commerce from confirming the representativeness of

Riddhi’s and SAB’s zero rates. However, that the record was so limited stems in no small part

from Commerce’s decision to individually investigate only two companies. Commerce may not

“explain the absence of evidence by invoking procedural difficulties that were at least in part a

creature of its own making.” Yangzhou, 716 F.3d at 1378; accord Albemarle Corp. v. United

States, 37 CIT __, __, 931 F. Supp. 2d 1280, 1293 (2013) (“[T]he state of the record is not the

fault of the separate rate respondents. The available data . . . were limited by the Department’s

decision to individually examine only two mandatory respondents.”).

       Furthermore, even if Commerce’s concerns regarding the representativeness of Riddhi’s

and SAB’s zero rates might justify using a methodology other than the expected methodology

under § 1673d(c)(5)(B), those concerns do not absolve Commerce of its duty to verify that the

resulting rate reflects economic reality. See Baroque, 38 CIT at __, 971 F. Supp. 2d at 1343–44.

Otherwise stated, the incomplete Q&V data may provide Commerce with a reason to avoid using

the expected methodology—a weighted average of Riddhi’s and SAB’s rates—but it would not

justify assigning cooperative, uninvestigated respondents an all-others rate that is completely

untethered to their pricing behavior. The 11.01% all-others rate that Commerce selected here

appears untethered to respondents’ pricing behavior because (1) it is unsupported by

corroborative record evidence, and (2) is actually undermined by evidence suggesting that it is

not an accurate depiction of pricing during the review period.

       Regarding the first point, the court notes that Commerce cited no evidence below

suggesting that a rate of 11.01% reflects the economic reality of all-others rate respondents. In

briefing before this court, the Government attempts to belatedly supplement the record with
Court No. 13-00204                                                                                  Page 16
additional support. Specifically, the Government claims that “[t]he AFA rate of 22.02% was the

highest, non-aberrational transaction-specific margin calculated for one of the mandatory

respondents in the review, and as such, reflects the economic reality of the non-selected

respondents in the review.” Def.’s Resp. to Pls.’ Mot. for J. on Agency R., ECF No. 41 (“Def.’s

Br.”), at 31–32. Quoting Yangzhou, the Government and Defendant-Intervenor also claim that

the selected all-others rate is reasonable because it is not “exceptionally larger” or “far in excess”

of Riddhi’s and SAB’s zero rates. See id. at 32; Def.-Intervenor’s Resp. to Pls.’ Mot. for J. on

Agency R., ECF No. 40, at 20 (citing Yangzhou, 716 F.3d at 1376, 1379).

       Aside from the fact that the court’s review is limited to the agency record, this reasoning

is unpersuasive standing alone. While the 22.02% figure derived from actual sales data reported

by Riddhi during the review, it was also purposely selected with adversity in mind and

constituted but one sale out of many other non-dumped sales. Indeed, “if the presence of [a

22.02% margin] failed to justify assigning an overall above-de minimis rate [to Riddhi], then

[that margin] certainly cannot serve to do so for the remaining cooperative companies.” Amanda

Foods (Vietnam) Ltd. v. United States, 34 CIT __, __, 714 F. Supp. 2d 1282, 1295 (2010).

Furthermore, the bare assertion that a 11.01% all-others rate is not “far in excess” of Riddhi’s

and SAB’s rates is not substantial evidence that a rate of 11.01% “reasonably reflect[ed] . . .

potential dumping margins” for uninvestigated, cooperative respondents. See SAA, 1994

U.S.C.C.A.N. at 4201.

       Commerce’s sparse reasoning in this case was particularly questionable because there is

evidence supporting a lower all-others rate. The all-others rate of 11.01% “represents a historic

high” for cooperative respondents in proceedings under this order.6 See Pls.’ Br. 9. For


       6
           The Government justifies ignoring rates calculated in prior reviews on the basis that those rates are
                                                                                           (footnote continued)
Court No. 13-00204                                                                                   Page 17
example, Commerce had previously calculated all-others rates of 1.22% in the first review;

1.34% in the second and third reviews; and 3.05% in the fourth review. Certain Lined Paper

Products from India, 74 Fed. Reg. 17,149, 17,152 (Dep’t Commerce Apr. 14, 2009) (1st admin.

review); Certain Lined Paper Products from India, 75 Fed. Reg. 7563, 7565 (Dep’t Commerce

Feb. 22, 2010) (2d admin. review); Certain Lined Paper Products from India, 76 Fed. Reg.

10,876, 10,878 (Dep’t Commerce Feb. 28, 2011) (3d admin. review); Certain Lined Paper

Products from India, 77 Fed. Reg. 14,729, 14,731 (Dep’t Commerce Mar. 13, 2012) (4th admin.

review) (hereinafter, “FR Notices from Prior Reviews”). Further, cooperative mandatory

respondents received margins of 1.22% in the first review (Kejriwal Exports and Kejriwal Paper

Limited); 1.34% in the second review (Navneet); 0.43% and 0.28% in the third review (Navneet

and Super Impex, respectively); and 2.70% and 3.58% in the fourth review (Navneet and Riddhi,

respectively). See FR Notices from Prior Reviews. When placed in context, the 11.01% figure

appears aberrational because it is significantly higher than all prior margins calculated for

cooperative respondents, and it represents a nearly four-fold increase from the preceding review

during a time when mandatory respondent margins dropped to zero.7



distorted due to zeroing and because agency decisions in other reviews are not binding in the instant review. Def.’s
Br. 37–38. As a preliminary matter, Plaintiffs never argue that the previously calculated margins are binding in this
review. Instead, Plaintiffs offer that evidence only to show—along with other evidence—that the 11.01% all-others
rate might be unreasonably inflated. See Pls.’ Reply Br. 20. In any event, Commerce itself stated that it
occasionally considered margins from other reviews when calculating all-others rates. See I&D Mem. 14.
         The Government’s concerns regarding zeroing are also not a persuasive reason for disregarding all prior-
calculated rates. If anything, the fact that the previous margins were significantly lower than the 11.01% all-others
despite the presence of zeroing detracts from the reasonableness of Commerce’s determination. While dumping
margins based on zeroing might lead some to question whether the resulting margin is artificially inflated, zeroing
can never lower a dumping margin.
         7
           The court has previously expressed concern with reliance on prior rates where those rates were calculated
“in another review for other respondents” and might not rationally relate to pricing in subsequent reviews. See
Albemarle, 37 CIT at __, 931 F. Supp. 2d at 1292; see also Amanda I, 33 CIT at __, 647 F. Supp. 2d at 1382.
Notably, most of the Plaintiffs here (with the exception of Navneet and Super Impex) have never been individually
investigated. Thus, the court’s focus on prior rates should not be construed as a suggestion that Commerce use older
margins without further explanation. Rather, the court references prior rates along with other data points to illustrate
that Commerce did not support with substantial evidence the economic reality of an 11.01% all-others rate.
Court No. 13-00204                                                                                    Page 18
         The 11.01% rate appears equally aberrational when placed among other data from this

review. Although Commerce questions the reliability of the rates assigned to Riddhi and SAB,

those zero rates nonetheless constitute the only contemporaneous evidence of pricing practices

among large exporters of subject merchandise and are presumed to represent respondents as a

whole.8 See Amanda Foods (Vietnam) Ltd. v. United States, 36 CIT __, __, 837 F. Supp. 2d

1338, 1345–46 (2012). Additionally, the Q&V data on the record also appear to detract from the

reasonableness of an 11.01% all-others rate. According to Plaintiffs, the average unit values

(“AUV”) of Riddhi’s and SAB’s subject exports during this review were [[

             ]], respectively. See Pls.’ Reply Br. 23. The other six companies that responded to

Commerce’s Q&V questionnaires reported AUVs of between [[                                                ]]. Id.

AUVs provide a “rough, estimated snapshot of a respondent’s pricing practices.” Yangzhou, 716

F.3d at 1376 (quoting Commerce’s remand results). A low AUV may be associated with a

higher dumping margin, while a high AUV suggests a comparatively lower margin (if any). See

id. Though of limited independent usefulness,9 the fact that [[                    ]] received a zero margin and

its reported AUV was apparently the [[

                  ]] is evidence suggesting that other respondents were also not dumping.

         8
           Indeed, Commerce justified its decision to investigate two respondents on its belief “that by selecting the
largest exporters as mandatory respondents . . . we will examine companies that account for a significant volume of
total exports.” Resp’t Selection Mem. 8. If—contrary to what Commerce found in its Respondent Selection
Memorandum—Commerce were concerned that Riddhi’s and SAB’s data would not provide a representative
sample, Commerce should have selected additional respondents for review.
         9
           In Yangzhou, the Federal Circuit accepted plaintiff Yangzhou Bestpak’s challenge to a separate rate that
Commerce corroborated using AUV data. 716 F.3d at 1380. In that case, Commerce had investigated two
respondents: one respondent that cooperated (and received a de minimis margin) and another that did not (and
received the country-wide AFA rate of 247.65%). Id. at 1375. Commerce calculated the separate rate as the simple
average of those two margins and justified the economic reality of the separate rate by reference to AUVs. Id. at
1376. Commerce reasoned that the separate rate reflected economic reality because Yangzhou Bestpak’s AUV fell
in between the AUVs for the two mandatory respondents. Id. The Federal Circuit rejected this reasoning as
speculative. Id. at 1379.
         This court does not highlight the AUVs in this case to suggest that Commerce use that data exclusively to
corroborate its all-others rate. Rather, as with margins calculated in prior reviews of this order, the court highlights
the AUVs because those figures are some evidence detracting from the reasonableness of an 11.01% all-others rate.
Court No. 13-00204                                                                  Page 19
       Based on the foregoing, the court cannot find that substantial evidence supported

Commerce’s all-others rate. Accordingly, remand is necessary so that Commerce can reconsider

its methodology as applied in this case.

                             CONCLUSION AND ORDER

       For the foregoing reasons, the court concludes that Commerce must reconsider the

methodology that it used to calculate the all-others rate in the Final Results. Upon consideration

of all papers in proceedings in this case and upon due deliberation, it is hereby

       ORDERED that the Final Results be, and hereby are, REMANDED to Commerce for
reconsideration and redetermination in accordance with this Opinion and Order; it is further

       ORDERED that Plaintiffs’ Rule 56.2 Motion for Judgment on the Agency Record be,
and hereby is, GRANTED IN PART as provided in this Opinion and Order; it is further

       ORDERED that Commerce shall reconsider its method of calculating the all-others rate
imposed against Plaintiffs, and redetermine those margins in accordance with this Opinion and
Order; and it is further

        ORDERED that Commerce shall have ninety (90) days from the date of this Opinion and
Order in which to file its Remand Redetermination, that Plaintiffs and Defendant-Intervenor
shall have thirty (30) days from the filing of the Remand Redetermination in which to file
comments thereon; and that the Government shall have thirty (30) days from the date of filing of
Plaintiffs’ and Defendant-Intervenor’s comments to file a response to those comments.

                                                                           /s/ Richard W. Goldberg
                                                                               Richard W. Goldberg
                                                                                       Senior Judge

Dated: July 22, 2014
New York, New York
