Full opinion text
OPINION AND ORDER STANCEU, Judge. Before the court is the redetermination issued by the International Trade the court’s remand order in Gerber Food (Yunnan) Co. v. United States, 29 CIT -, 387 F.Supp.2d 1270 (2005) (“Gerber V). In Gerber I, the court held that the Department’s final results in the third administrative review of an antidumping duty order applying to imports of certain preserved mushrooms from the People’s Republic of China (“China” or the “PRC”) were not supported by substantial evidence, and were otherwise not in accordance with law, in the application of the “facts otherwise available” and “adverse inferences” provisions of 19 U.S.C. § 1677e (2000). Because the redetermination complies with the remand order in Gerber I and with applicable law in some respects but not others, the court remands the re-determination to Commerce for further proceedings consistent with this Opinion and Order. I. Background Commerce issued the final results of the third administrative review in July 2003 (“Final Results”). Certain Preserved Mushrooms From the People’s Republic of China: Final Results and Partial Rescission of the New Shipper Review and Final Results and Partial Rescission of the Third Antidumping Duty Administrative Review, 68 Fed.Reg. 41,304 (July 11, 2003) (“Final Results”). Plaintiffs Gerber Food (Yunnan) Co., Ltd. (“Gerber”), a Chinese producer of preserved mushrooms, and Green Fresh (Zhangzhou) Co., Ltd. (“Green Fresh”), a Chinese exporter, contested the Final Results in an action brought in the Court of International Trade in August 2003. That action culminated in the court’s decision in Gerber I, which remanded the matter back to the agency for reconsideration and redetermi-nation. See Gerber I, 29 CIT at-, 387 F.Supp.2d at 1291. The court’s opinion in Gerber I sets forth the procedural background of this proceeding; pertinent details about the procedural background are summarized herein. See id., 29 CIT at -, 387 F.Supp.2d at 1273-78. Commerce issued an antidumping duty order on certain preserved mushrooms from China in 1999. See Notice of Amendment of Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Preserved Mushrooms From the People’s Republic of China, 64 Fed.Reg. 8308 (Feb. 19, 1999). Plaintiffs Gerber and Green Fresh participated in the third administrative review of the antidumping duty order, which pertained to entries of subject mushrooms made during the period beginning February 1, 2001 and ending January 31, 2002 (the “period of review” or the “POR”). Final Results, 68 Fed.Reg. at 41,305. In the Final Results, Commerce relied on its authority under 19 U.S.C. § 1677e in assigning to each of the two plaintiffs an antidumping duty assessment rate of 198.63 percent, based on a procedure that Commerce termed “total adverse facts available.” Id. at 41,306-07. Commerce acted on its findings that Gerber and Green Fresh, during the period of review, had entered into a business relationship to circumvent the antidumping laws by improperly allowing Gerber to take advantage of Green Fresh’s comparatively low cash deposit rate. Id. According to Commerce, Gerber and Green Fresh misrepresented the nature of their business relationship by setting forth Green Fresh as Gerber’s agent for purposes of arranging the export shipments of Gerber’s merchandise. See id. Commerce concluded that despite the parties having entered into an agreement under which Green Fresh was to provide services in arranging for export shipments of Gerber’s mushrooms, “Gerber in fact arranged shipment of all of its sales of subject merchandise and paid Green Fresh a fee to use Green Fresh’s sales invoices for this purpose in order to take advantage of Green Fresh’s comparatively low cash deposit rate during the POR_” Id. at 41,306. Commerce concluded that as a result of the parties’ misrepresentations in their questionnaire responses and the circumvention of cash deposit requirements, all of the information submitted by the two parties during the administrative review that was required for the calculation of individual an-tidumping duty assessment rates was unreliable and could not be verified. Id. at 41,306-07. In addition, Commerce invoked its authority under 19 U.S.C. § 1677e to deter circumvention of the anti-dumping laws. Id. at 41,307. Based on its various findings, Commerce, in the Final Results, assigned both Gerber and Green Fresh the 198.63 percent assessment rate, which corresponded to the highest rate assigned to any party in the third administrative review and the rate that Commerce assigned to parties that had failed to establish independence from control of the government of the PRC. Id. at 41,309. The Final Results departed from the approach Commerce had taken in the preliminary results of the third administrative review, which Commerce had issued in March 2003 (“Preliminary Results”). See Certain Preserved Mushrooms from the People’s Republic of China: Prelim. Results and Partial Rescission of Fourth New Shipper Review and Prelim. Results of Third Antidumping Duty Administrative Review, 68 Fed.Reg. 10,694, 10,697 (Mar. 6, 2003) (‘Preliminary Results”). In the Preliminary Results, Commerce discussed disapprovingly the export agency agreement between Gerber and Green Fresh but nevertheless calculated preliminary antidumping duty margins for each respondent that did not involve the use of facts otherwise available or adverse inferences. Id. at 10,697, 10,702. Commerce calculated preliminary antidumping duty margins of 1.17 percent for Gerber and 46.41 percent for Green Fresh. Id. at 10,702. Commerce acknowledged in the Preliminary Results that Gerber and Green Fresh had revealed their business relationship to Commerce on the record but also concluded that “this relationship resulted in evasion of antidumping cash deposits during the POR.” Id. at 10,697. At that time, Commerce explained that “[t]he Department has preliminarily calculated an individual margin for each of these respondents based on the data reported by each of them, adjusted to reflect verification findings, which it will also use to calculate importer-specific assessment rates.” Id. Noting its “eoncern[ ] that an-tidumping duty cash deposits may be evaded again in subsequent PORs,” Commerce stated its intention to assign to both Gerber and Green Fresh, for purposes of the cash deposit, the higher of the antidump-ing duty rates calculated in the Preliminary Results for either respondent, ie., the 46.41 percent antidumping duty rate calculated for Green Fresh. Id. The court in Gerber I held that the Department’s application of the 198.63 percent rate to all transactions of Gerber and Green Fresh for the period of review was unsupported by substantial evidence on the record and was otherwise not in accordance with law. Gerber I, 29 CIT at-, 387 F.Supp.2d at 1272-73. The court concluded that Commerce did not support with substantial record evidence certain findings of fact and failed to explain its determination adequately. Id., 29 CIT at -, 387 F.Supp.2d at 1278-80. The court concluded that in the absence of such supported findings of fact, Commerce exceeded its authority in applying the “facts otherwise available” and “adverse inferences” provisions of 19 U.S.C. § 1677e to reject all the information submitted by the two plaintiffs. Id. The court also concluded that the Department’s assignment of the 198.63 percent assessment rate to all transactions of the two plaintiffs could not be justified by deference to the agency’s construction of 19 U.S.C. § 1677e or by deference to a construction of the anti-dumping laws in general to allow Commerce to exercise its inherent authority to prevent circumvention of these laws. Id., 29 CIT at -, 387 F.Supp.2d at 1278, 1288-1290. The court further concluded that Commerce was required to calculate individual assessment rates for Gerber and Green Fresh in accordance with applicable statutory requirements and, if resorting to facts otherwise available, to “identify what information needed to calculate those assessment rates is unavailable or is deficient ... so as to require the use of the ‘facts otherwise available’ procedure of 19 U.S.C. § 1677e(a).” Id., 29 CIT at-, 387 F.Supp.2d at 1290. The court added that “[i]f Commerce determines that any information that was submitted by either plaintiff and is necessary to the calculation of the individual assessment rates is unverifiable, then it must identify that specific information and provide a reasoned and supported analysis of any decision to deem that specific information unverifiable.” Id. Finally, the court concluded that if Commerce “uses any inferences adverse to either plaintiff in selecting from among the facts otherwise available, Commerce must explain its conclusion, based on substantial evidence on the record, that the party in question failed to cooperate to the best of its ability in providing information that was needed to calculate the individual assessment rate.” Id. In the redetermination that it issued pursuant to the remand in Gerber I (“Re-determination”), Commerce calculated individual antidumping duty assessment rates for each of the two plaintiffs. See Redetermination Pursuant to Ct. Remand at 6 (Dec. 1, 2005) (“Redetermination’’). As it had in the Final Results, Commerce invoked the “facts otherwise available” and “adverse inferences” provisions, but rather than apply these provisions to all information submitted during the review by the two parties, Commerce limited the application to a group of twenty-four individual sales transactions of subject merchandise produced by Gerber that was exported to the United States and entered during the period of review. Id. at 49-51. Commerce selected these twenty-four transactions because it concluded that these were the transactions for which Green Fresh was claimed to be the exporter in the documentation that had been submitted to United States Customs and Border Protection (“Customs”) at the time of entry. Id. at 50. To those twenty-four transactions, Commerce continued to assign the anti-dumping duty rate of 198.63 percent. Id. at 50-51. To calculate Gerber’s assessment rate, Commerce relied on the “facts otherwise available” and “adverse inferences” provisions of § 1677e in assigning the 198.63 percent rate to each of the twenty-four transactions. Id. at 6, 49-50. Commerce used pertinent information developed during the review, with certain adjustments, but without resort to the “facts otherwise available” or “adverse inferences” provisions of 19 U.S.C. § 1677e, in performing the antidumping duty calculation for the remaining ten of Gerber’s sales transactions of subject merchandise subject to the review. Id. at 6, 49-51, 54-56. This method reduced Gerber’s overall assessment rate for the third administrative review from the 198.63 percent rate determined in the Final Results to 150.79 percent. Id. at 6. To calculate Green Fresh’s assessment rate, Commerce attributed to Green Fresh the twenty-four sales transactions for which it found that the entry documentation submitted to Customs by Gerber identified Green Fresh as the exporter. Id. at 50-51. To do so, Commerce invoked its authority under § 1677e. Commerce, however, had found as facts that Gerber was the producer and exporter of the merchandise that was the subject of those twenty-four sales transactions. Id. at 29-30, 49-51. In the calculation of Green Fresh’s assessment rate, Commerce assigned to those twenty-four transactions the antidumping duty rate of 198.63 percent. Id. at 6. Commerce used pertinent information developed during the review, with certain adjustments, but without resort to “facts otherwise available” or “adverse inferences,” in performing the anti-dumping duty calculation for the 134 sales transactions in which Green Fresh actually exported merchandise that was subject to the administrative review. Id. at 6, 18-19, 49-51, 54-56. This merchandise had been produced by Green Fresh’s affiliated producer, Lubao. Id. at 18. The result of these calculations was to reduce Green Fresh’s assessment rate from the 198.63 percent determined in the Final Results to 84.23 percent. Id. at 6. II. Jurisdiction and Standard of Review The court exercises jurisdiction in this case pursuant to 28 U.S.C. § 1581(c) (2000). The court must determine whether the Redetermination complies with the remand order in Gerber I, sets forth findings of fact that are supported with substantial evidence on the record, and is otherwise in accordance with law. 19 U.S.C. § 1516a(b)(l)(B)(i) (2000). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). The court must consider the entire record, including both evidence that supports the decision by the agency and such evidence that “fairly detracts from the substantiality of the evidence.” Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed.Cir.1984). To be affirmed under the substantia] evidence standard of review, an agency “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choicé made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotation marks and citation omitted). The court, however, will not substitute its judgment for that of the agency when the choice is “between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). III. Discussion The Redetermination presents the general issue of whether Commerce properly invoked and applied the “facts otherwise available” provision of 19 U.S.C. § 1677e(a) and the “adverse inference” provision of 19 U.S.C. § 1677e(b) in calculating the separate antidumping duty assessment rates of 150.79 percent for Gerber and 84.26 percent for Green Fresh. Redetermination at 5-6. To support the application of these two provisions, Commerce, in the Redetermination, must support with substantial record evidence the findings of fact required by § 1677e and adequately must explain its reasoning. The court addresses below four issues that arise from the Redetermination: (A) whether Commerce supported with substantial record evidence the factual findings required under subsection (a) of § 1677e in invoking the “facts otherwise available” provision as to each plaintiff; (B) whether Commerce supported with substantial record evidence its findings that each plaintiff failed to cooperate to the best of its ability in responding to an information request from Commerce so as to justify the drawing of “adverse inferences” as to each plaintiff; (C) whether Commerce acted lawfully in imputing to Gerber and also to Green Fresh the twenty-four sales transactions involving merchandise produced by Gerber for which Commerce found as a fact that the entry documentation presented to Customs identified Green Fresh as the exporter; and (D) whether Commerce acted lawfully in applying the 198.63 percent rate to those twenty-four transactions in reliance on § 1677e. The court concludes that for the purpose of invoking the “facts otherwise available” provision, Commerce supported with substantial record evidence its findings that each respondent withheld requested information and significantly impeded the administrative review proceeding by providing unsatisfactory responses to the Department’s requests for information on the issue of the identity of the exporter for certain of the transactions subject to the review. The court also concludes that for the purpose of invoking the “adverse inferences” provision, Commerce supported with substantial record evidence its finding that each plaintiff, in responding to the Department’s requests for information, failed to cooperate by not acting to the best of its ability. The court further concludes that Commerce did not explain adequately how its decision to attribute the aforementioned twenty-four transactions both to Gerber and to Green Fresh, on the record facts of this case, comported with 19 U.S.C. § 1677e. Finally, the court concludes that Commerce erred in assigning the 198.63 percent rate; Commerce failed to establish a rational relationship between the 198.63 percent rate and the actual transaction-specific margins of Gerber or Green Fresh. A The Department’s Findings that Both Plaintiffs Withheld Requested Information and Substantially Impeded the Review Proceeding Are Adequately Supported by Record Evidence Commerce may invoke its authority to apply facts otherwise available under subsection (a)(1) of § 1677e or any of the four subparagraphs in subsection (a)(2) of § 1677e. Under § 1677e(a)(l), Commerce may invoke facts otherwise available when “necessary information is not available on the record[.]” 19 U.S.C. § 1677e(a). As the court discussed in its opinion in Gerber I, Commerce found during the administrative review that it possessed all the information it needed to calculate future anti-dumping duty assessment rates for Gerber and for Green Fresh and used that information in calculating preliminary margins. Gerber I, 29 CIT at-, 387 F.Supp.2d at 1279, 1282-83. Commerce specifically found as facts that such information was on the record, that it had verified the information, and that the information was usable for the future calculation of assessment rates. See id. As the court observed, “other than the record evidence regarding the export agency agreement, Commerce found few discrepancies with the information that Gerber and Green Fresh provided, and Commerce resolved any inaccuracies found during verification.” Id., 29 CIT at-, 387 F.Supp.2d at 1282. In the Redetermination, Commerce does not expressly conclude with respect to § 1677e(a)(l) that the information needed to calculate individual assessment rates for Gerber and Green Fresh is unavailable on the record. Instead, Commerce claimed in the Redetermination that substantial record evidence supports the application of facts otherwise under subparagraphs (A) through (D) of § 1677e(a)(2) with respect to both plaintiffs, and with respect to the transactions that involved merchandise produced by Gerber and for which the entry documentation submitted to Customs identified Green Fresh as the exporter. See Redetermination at 31-33 (citing 19 U.S.C. § 1677e(a)(2)). Commerce concluded that both Gerber and Green Fresh withheld requested information and thereby satisfied the criterion of subparagraph (A) of § 1677e(a)(2). Id. at 31-32. Commerce also found that the parties provided new information at verification, thereby satisfying subparagraph (B), under which the facts otherwise available provision may be invoked if information is provided after the applicable deadline. Id. Commerce concluded that, for purposes of subparagraph (C), both parties significantly impeded the administrative review proceeding, and that, with respect to subparagraph (D), both provided unverifiable information. Id. at 32-33. Much of the discussion that the Redeter-mination addresses to these various findings is directed, broadly and generally, to the parties’ disclosure of information about their commercial relationship as it pertained to their respective roles in the export agency agreement. Not all of this discussion is pertinent to the identification of the specific record information that is needed for the calculation of antidumping duty assessment rates for the two parties, and not all of it is relevant to the narrow question of whether the manner in which the parties disclosed that specific information in response to the Department’s requests justified a resort to facts otherwise available under one or more of the four separate criteria of § 1677e(a)(2). Commerce does not provide adequate reasoning for concluding that subpara-graphs (B) and (D) of § 1677e(a)(2) authorize the resort to “facts otherwise available.” Although there may be evidentiary support for the Department’s findings in the Redetermination that certain information submitted by the parties was provided late or was unverifiable for purposes of subparagraphs (B) and (D) of § 1677e(a)(2), respectively, Commerce does not explain satisfactorily in the Rede-termination how those findings invalidate the Department’s prior finding in the Preliminary Results that it could calculate importer-specific assessment rates from data the parties submitted and Commerce verified. See Redetermination at 32-36; Preliminary Results, 68 Fed.Reg. at 10,697, 10,702. Nor does Commerce explain how any late or unverifiable information was related to the execution and reporting of the twenty-four sales transactions at issue. See Redetermination at 32-36. Despite the shortcomings the court finds to exist in the Redetermination, the court concludes that Commerce in the Redeter-mination made findings of fact, supported by substantial record evidence, sufficient to justify the use of facts otherwise available pursuant to § 1677e(a)(2)(A) and (C), as discussed in this Opinion and Order. See Redetermination at 9-15, 17-22, 26-28, 31-37. A factual finding that a party withheld requested information or significantly impeded the administrative review proceeding so as to satisfy subparagraphs (A) or (C) of § 1677e(a)(2), respectively, is sufficient, standing alone, to justify the Department’s use of facts otherwise available for specific responses and specific information, provided Commerce adheres to all statutory requirements, particularly those of 19 U.S.C. § 1677m. 19 U.S.C. § 1677e(a). When a party withholds requested information or significantly impedes a proceeding, Commerce “shall, subject to Section 1677m(d) of this title, use the facts otherwise available in reaching the applicable determination under this subtitle.” Id. Under § 1677m(d), after having provided a respondent the opportunity to remedy, to the extent practicable, deficiencies in a response to a request for information, Commerce may disregard all or part of the original response to the request for information, and the responses to the subsequent requests, if it finds that those responses are not satisfactory, unless the information provided satisfies all of the criteria of § 1677m(e). Id. § 1677m(d). One of those criteria is that the submitter demonstrate that it acted to the best of its ability in providing the requested information. Id. § 1677m(e)(4). Because of this requirement in § 1677m(e)(4), the court does not construe § 1677e(a)(2) and (b), and § 1677m(d) and (e), when read together, to preclude Commerce from invoking the facts otherwise available and adverse inference provisions in all instances in which Commerce, despite initially receiving unsatisfactory responses to its information requests, eventually obtains from an interested party, and verifies, the information it requested in conducting an administrative review under 19 U.S.C. § 1675 (2000). If the court were to so construe these related provisions, a participant in the administrative review would incur no adverse consequences for withholding requested information until the later stages of the questionnaire process, or for significantly impeding the review by repeatedly providing questionnaire responses with significant deficiencies, and thereby failing to act to the best of its ability in providing the information requested. The plain meaning of §§ 1677e and 1677m is to the contrary. Congress did not limit 19 U.S.C. § 1677e(a) to those instances in which information necessary to a determination is unavailable on the record. Although Congress, in subsection (a)(1), authorized the reliance on facts otherwise available in a situation where information was deficient or missing, Congress also provided for the use of facts otherwise available in four other situations specified in subsection (a)(2). See id. § 1677e(a). Commerce may apply the facts otherwise available provision in situations in which a party, inter alia, withheld requested information or significantly impeded a proceeding, as specified in subparagraphs (A) and (C) thereof. Id. § 1677e(a)(2)(A), (C). The inclusion of subparagraphs (A) and (C) signifies that Commerce is not confined, in deciding to resort to facts otherwise available, to instances in which information necessary to the specific determination is missing, submitted late, or unverifiable. For example, a party’s response to the Department’s request for information could contain the necessary, verifiable information yet still be unsatisfactory in other respects, such as by also including other statements that contradict that information, causing the agency to make further inquiries that otherwise would not have been required. Also, a party’s unresponsiveness and failure to cooperate prior to providing the needed and verifiable information might significantly and unnecessarily impede the proceeding and waste the Department’s resources. In 19 U.S.C. § 1677m(d), Congress expressly authorized Commerce to disregard all or part of unsatisfactory responses to its requests for information, subject to two qualifications. First, as mentioned above, Commerce may not disregard deficient responses without first informing the submitter of the deficiency and, to the extent practicable, providing the submitter the opportunity to remedy or explain the deficiency in light of the statutory time limits for completing the review. Id. § 1677m(d). Second, under § 1677m(e), Commerce may not disregard information necessary to a determination, even if the information does not meet all applicable requirements, if a party demonstrates that it acted to the best of its ability in providing that information and that the information was timely submitted, verifiable, sufficiently complete to serve as a reliable basis for reaching the applicable determination, and usable without undue difficulties. Id. § 1677m(e). When construed together, §§ 1677e and 1677m afford Commerce recourse if a party fails to cooperate by filing initial and subsequent questionnaire responses that are so unsatisfactory as to support a finding that the party withheld requested information or significantly impeded the review proceeding by providing those responses. Nevertheless, when invoking facts otherwise available under § 1677e(a)(2)(A) or (C), Commerce must support with substantial record evidence its findings that a party withheld requested information or significantly impeded a proceeding. In addition, Commerce must present adequate reasoning for its conclusions. Commerce, in the Final Results, relied specifically on findings that the two parties had failed to disclose initially the fact that they did not adhere to the original terms of the export agency agreement and that Green Fresh failed to provide supporting documentation for shipments that Gerber made using Green Fresh’s invoices. Final Results, 68 Fed.Reg. at 41,-306-07; see Gerber I, 29 CIT -, 387 F.Supp.2d at 1281-82. Commerce did not explain in the Final Results how these findings related to the determination of assessment rates and thereby could justify the Department’s particular application of facts otherwise available under 19 U.S.C. § 1677e(a)(2)(A). Commerce instead discussed its findings on the withholding of information in the general context of misrepresentations by Gerber and Green Fresh regarding their relationship and the export agency agreement. See Final Results, 68 Fed.Reg. at 41,306-07. Based on such statements, Commerce determined that “the business relationship which existed between Gerber and Green Fresh resulted in evasion of antidumping cash deposits during the POR” and that the parties “actively colluded to circumvent the cash deposit rates in effect during the POR.” Id. at 41,306. Commerce, however, did not explain how information about alleged evasion or circumvention of cash deposits during the period of review resulted in a factual finding that Gerber or Green Fresh had withheld information material to the determination of assessment rates in the administrative review. Commerce instead stated that Gerber’s alleged misrepresentations impugned the veracity of all of Gerber’s responses and Commerce therefore excluded all of the information Gerber had submitted. Id. at 41,306-07. Concerning the possible impeding of the proceeding for purposes of § 1677e(a)(2)(C), the court concluded in Gerber I that Commerce, although invoking § 1677e(a)(2)(C) in the Final Results, did not support or explain its conclusion that Gerber and Green Fresh significantly had impeded the administrative review. Gerber I, 29 CIT at-, 387 F.Supp.2d at 1284. “With respect to criterion (C) of § 1677e(a)(2), Commerce did not reveal its reasoning and failed to cite to evidence on the record that could support a finding that the administrative review proceeding was ‘significantly impeded’ as a result of actions taken by either Gerber or Green Fresh.” Id. In the Redetermination, Commerce supports its findings that both respondents, through questionnaire responses addressing the identity of the exporter in specific transactions, withheld requested information necessary to the determination and calculation of assessment rates and significantly impeded the administrative review. As to the information regarding the identity of the exporter, Commerce explains in the Redetermination, and the court agrees, that the identity of the exporter and the reporting of the correct sales transactions are critical to the determination of assessment rates. See Redetermination at 33 (“It is entirely reasonable to find that providing confusing, misleading, and often false responses to questions such that the agency is unable to discern who is the exporter that should be reporting the sales and how many sales are affected significantly impedes a review....”); 19 U.S.C. § 1675(a)(2)(A) (requiring Commerce, in an administrative review, to determine “the normal value and export price (or constructed export price) of each entry of the subject merchandise”). Record evidence supports the Department’s finding that the questionnaire responses of both plaintiffs on the issue of the identity of the exporter for certain transactions involved in the administrative review were, on the whole, unsatisfactory. Some of the responses were misleading or false in informing Commerce that Gerber was a supplier of subject merchandise to Green Fresh during the period of review and that Green Fresh was the exporter of Gerber-produced merchandise exported to the United States. As Commerce eventually came to understand during the administrative review, all of Green Fresh’s export shipments during the period of review involved subject merchandise produced by Lubao, not Gerber; Commerce eventually confirmed that Gerber, not Green Fresh, actually exported all the merchandise involved in the review that Gerber had produced. See Redetermination at 15, 18-19. Some responses relevant to the question of the identity of the exporter, although not necessarily false, were confusing and con-tradietory of other statements by the same respondent. See Redetermination at 9-15, 17-22, 26-28. In the Redetermination, Commerce cites to and quotes from various information requests and various responses of Gerber and Green Fresh. See id. Upon review of these information requests and responses, and others on the record, the court concludes that substantial evidence supports the Department’s findings that both parties withheld information that was material to the determination and calculation of individual assessment rates for transactions involving subject merchandise produced by Gerber, and that certain of the responses of each of the plaintiffs were so unresponsive and misleading, and in some instances so inaccurate, that they impeded the review significantly. With respect to Gerber, some examples from the record will suffice to show the evidentiary support for the Department’s findings. In Section A of its questionnaire, Commerce directed every respondent to contact it within two weeks of receiving the questionnaire if the respondent was aware that any of the merchandise that it sold to another company in the respondent’s country was ultimately shipped to the United States. Gerber responded, stating that Gerber transacted some sales during the period of review through an agent[,] Green Fresh, who was paid a commission for its services. For those sales transacted through Green Fresh, Gerber negotiated the price with the U.S. customer and at all times was aware that the product was destined for the United States. Green Fresh acted as the exporter of record, however. Gerber Section A Resp. at A11-A12 (May 23, 2002) (Confidential Admin. R. Doc. No. 2); see Redetermination at 9. Because Green Fresh was not a reseller of Gerber’s merchandise, Gerber’s response was unnecessary. It was also misleading. Gerber did not sell to Green Fresh any merchandise involved in the review, and during the period of review, Green Fresh performed no function related to the sale of Gerber’s merchandise. In its first supplemental questionnaire to Gerber, Commerce requested that Gerber provide a copy of the export agency agreement and asked, in that context, “[w]hat services did Green Fresh provide?” and “[w]hy was Green Fresh the exporter of record?” Gerber First Supplemental Questionnaire at 2 (June 28, 2002) (Confidential Admin. R. Doc. No. 8); see Redetermination at 26. In its response, Gerber stated that “Green Fresh exported the product to the United States.” Gerber First Supplemental Resp. at 3-4 (Aug. 2, 2002) (Confidential Admin. R. Doc. No. 14); see Redetermination at 26. This response was so at variance with the actual circumstances of Green Fresh’s role that Commerce was justified in considering it false. The record establishes, and neither plaintiff contests, that Green Fresh never took title or possession of any of the Gerber-produced merchandise involved in the review, had no role in the sale of the merchandise, and did not arrange for the transport of the merchandise from China to the United States. The statement by Gerber that Green Fresh exported the product to the United States was not qualified elsewhere in Gerber’s first supplemental response. The unqualified statement is perplexing when read together with Gerber’s subsequent questionnaire responses. Commerce again sought clarification in a second supplemental questionnaire: “Please define and discuss the role Green Fresh played when it acted as an agent in the sale of Gerber merchandise. When did Green Fresh begin acting as an agent in the sale of Gerber merchandise?” Ger ber Second Supplemental Questionnaire at 2 (Aug. 13, 2002) (Confidential Admin. R. Doc. No. 16); Redetermination at 11. Gerber’s response begins evasively by answering the second question but not the first. Gerber’s answer to the second question, “Green Fresh acted as an agent for the sale of Gerber merchandise from Sept[.] 2001 to May 2002[,]” is itself less than satisfactory. Gerber Second Supplemental Resp. at 6 (Sept. 11, 2002) (Confidential Admin. R. Doc. No. 30); Redeter-mination at 12. Like Gerber’s statement in its first supplemental response, the response to the second supplemental questionnaire suggests, misleadingly, that Green Fresh had performed some function related to the sale of Gerber’s merchandise. The answer is evasive in failing to inform Commerce of the actual facts. Commerce, in asking the question, was proceeding upon the reasonable (given Gerber’s response to the first supplemental questionnaire), but incorrect, assumption that Green Fresh was a sales agent for Gerber. At the least, Gerber should have informed Commerce that Green Fresh was not a reseller and that its role had nothing to do with the sale of the merchandise. Absent that information, Commerce did not get a straightforward confirmation that Green Fresh’s activities were irrelevant to the determination of antidumping duty liability on the affected entries. In a third supplemental questionnaire, Commerce asked Gerber, once again, to describe the respective roles of Gerber and Green Fresh in sales that involved merchandise made by Gerber but sold by Green Fresh. Gerber Third Supplemental Questionnaire at 1-2 (Nov. 22, 2002) (Confidential Admin. R. Doc. No. 37); Rede-termination at 13. In the first sentence of its response, Gerber stated that twenty-four of its total of thirty-four sales transactions made by Gerber during the review “were made through Green Fresh.” Gerber Third Supplemental Resp. at 2 (Dec. 23, 2002) (Confidential Admin. R. Doc. No. 42); Redetermination at 13. This sentence might be characterized merely as vague, but the second sentence was misleading and incorrect: “We have conferred with Green Fresh and learned that they mistakenly did not report all of the sales made by it on our behalf.” Gerber Third Supplemental Resp. at 2 (Dec. 23, 2002) (Confidential Admin. R. Doc. No. 42); Re-determination at 14. It is undisputed that Green Fresh made no sales on behalf of Gerber and, accordingly, should not have reported any such sales. The next sentence informed Commerce — misleadingly and, as it turned out, incorrectly — that Green Fresh was amending its sales listing to “reflect a total of 24 sales made on behalf of Gerber in response to their latest questionnaire.” Gerber Third Supplemental Resp. at 2 (Dec. 23, 2002) (Confidential Admin. R. Doc. No. 42); Redetermination at 14. The remainder of the response, which states that Green Fresh is a shipping agent for Gerber’s exports to the United States and that Green Fresh “had no role at all in choosing customers or establishing price” appears to be inconsistent with the attribution to Green Fresh of sales of Gerber’s merchandise in the beginning of the response. Gerber Third Supplemental Resp. at 2 (Dec. 23, 2002) (Confidential Admin. R. Doc. No. 42); Re-determination at 14. The evidence of record is also sufficient to support the Department’s conclusion that Green Fresh withheld some information and impeded the investigation significantly through its misleading and incorrect questionnaire responses. Section A of the Department’s questionnaire required Green Fresh to identify unaffiliated companies “that supplied [Green Fresh] with the merchandise under review that [its] company or an affiliate sold to the United States.” Green Fresh Section A Resp. at 11 (May 23, 2002) (Confidential Admin. R. Doc. No. 1) (quoting Green Fresh Section A Questionnaire at A-8 (Apr. 16, 2002)); Redetermination at 10. In its response submitted on May 24, 2002, Green Fresh stated, falsely, that Gerber supplied Green Fresh with merchandise to be exported to the United States. Green Fresh Section A Resp. at 11 (May 23, 2002) (Confidential Admin. R. Doc. No. 1); Redetermination at 10. In the same response, Green Fresh told Commerce that it acted as an agent for sales made by Gerber and that “Gerber had full knowledge at all times that this merchandise was destined for the United States as Gerber negotiated the sale with its customer in the United States.” Green Fresh Section A Resp. at 11 (May 23, 2002) (Confidential Admin. R. Doc. No. 1); Re-determination at 10. In its response to Section C of the Commerce questionnaire, Green Fresh falsely stated that “[t]he subject merchandise sold by Green Fresh was produced by Lubao, [Green Fresh’s] affiliated manufacturer, and Gerber, an unaffiliated manufacturer.” Green Fresh Section C and D Resp. at C26 (June 7, 2002) (Confidential Admin. R. Doc. No. 6); Re-determination at 18. Green Fresh then indicated: “We have reported in our sales listing all sales of Lubao’s merchandise. The sales of Gerber merchandise are listed in the sales listing submitted as part of Gerber’s response and are indicated by all invoices that begin with the prefix LX.” Green Fresh Section C and D Resp. at C26 (June 7, 2002) (Confidential Admin. R. Doc. No. 6); Redetermination at 18. As it had in requesting information from Gerber, Commerce asked Green Fresh, in a first supplemental questionnaire sent on July 23, 2002, to discuss the function that Green Fresh had performed with respect to Gerber’s merchandise. In its response, Green Fresh stated, again falsely, that it had acted as the exporter for sales in which Gerber was the manufacturer. See Green Fresh First Supplemental Resp. at 1 (Aug. 19, 2002) (Confidential Admin. R. Doc. No. 21); Redetermination at 10. Somewhat inconsistently with this statement, the same response stated that “[t]he subject merchandise produced by Gerber was not transported to either Green Fresh’s or Lubao’s premises before being transported to the United States.” Green Fresh First Supplemental Resp. at 1 (Aug. 19, 2002) (Confidential Admin. R. Doc. No. 21); Redetermination at 10. In the supplemental questionnaire, Commerce, noting that Green Fresh had listed only its sales of Lubao’s merchandise in an exhibit (Exhibit C-2) to its Section C response listing its sales, asked Green Fresh to “explain why you did not list any sales of Gerber merchandise in Exhibit C-2?” Green Fresh First Supplemental Questionnaire at 8 (July 23, 2002) (Confidential Admin. R. Doc. No. 11); Redetermination at 18. Green Fresh responded that “[s]ince Gerber is also a respondent in this investigation, we believed that Gerber would report those sales. We have now revised Exhibit C-2 so as to include all the Gerber merchandise as well.” Green Fresh First Supplemental Resp. at 13 (Aug. 19, 2002) (Confidential Admin. R. Doc. No. 21); Redetermination at 18. The question provided Green Fresh the opportunity to provide Commerce the correct answer by stating unequivocally that Green Fresh had made no sales of Gerber’s merchandise during the review. Green Fresh did not do so. Commerce responded with a further inquiry in a second supplemental questionnaire, asking Green Fresh to “[p]lease provide a detailed description of the roles that [Gerber] and Green Fresh played with regard to the sales of subject merchandise manufactured by Gerber but sold by Green Fresh (‘sales in question’).” Green Fresh Second Supplemental Questionnaire at 1 (Nov. 22, 2002) (Confidential Admin. R. Doc. No. 36); Redetermi-nation at 12. In its response, Green Fresh stated that “Green Fresh acted as Gerber’s shipping agent by providing Gerber with certain export documents (an invoice, Customs and Quarantine inspection form, packing list, VAT refund form, Chinese customs declaration). Gerber was the manufacturer and seller for all these sales, meaning that Gerber sold to its own customers, not Green Fresh’s customers, and Gerber negotiated the price.” Green Fresh Second Supplemental Resp. at 1 (Dec. 23, 2002) (Confidential Admin. R. Doc. No. 43); Redetermination at 12. In the same questionnaire, Commerce referred to the revised Exhibit C-2 that Green Fresh had provided to Commerce when responding to the previous supplemental questionnaire, noting that Green Fresh had reported eleven sales transactions “which Green Fresh claims to represent sales supplied by Gerber that were sold through Green Fresh to the United States (‘Gerber sales’).” Green Fresh Second Supplemental Questionnaire at 3 (Nov. 22, 2002) (Confidential Admin. R. Doc. No. 36); Redetermination at 19. Green Fresh responded that “[w]e reported the 11 sales transactions for which we had the data. Since our role was limited to providing export documents, we were not aware of the details of all of the transactions.” Green Fresh Second Supplemental Resp. at 3 (Dec. 23, 2002) (Confidential Admin. R. Doc. No. 43); Redeter-mination at 19. In contrast to Green Fresh’s earlier questionnaire responses, Green Fresh’s December 23, 2002 response finally provided information from which Commerce could conclude that the eleven sales transactions were not, in any respect, sales that belonged to Green Fresh for purposes of the administrative review. The record evidence summarized above supports the Department’s finding that Gerber and Green Fresh withheld information material to the determination and calculation of antidumping duty assessment rates for sales of Gerber’s merchandise. In some of the responses to the Department’s questionnaires, for example, each party failed to disclose that Gerber, and not Green Fresh, was the actual exporter in all sales transactions involving Gerber’s merchandise that were involved in the review. Rather than plainly disclosing that fact, some responses of both parties provided confusing and contradictory information that misled Commerce to believe that Green Fresh had performed some function related to the sale of Gerber’s merchandise, when in fact Green Fresh did not. Other responses failed to inform Commerce of the plain fact that Gerber was never a supplier of subject merchandise to Green Fresh during the period of review. Substantial evidence also supports the Department’s finding that each plaintiff significantly impeded the administrative review in providing responses relevant to the issue of the identity of the exporter and seller in certain of the transactions that were involved in the administrative review. Various of those responses were confusing, misleading, and evasive; some of them, as discussed previously, were actually false. Most of the responses at issue were unsatisfactory in one respect or another in providing Commerce with the actual facts concerning the identity of the exporter and seller for certain of the sales transactions of subject merchandise. The Department’s questions throughout the series of supplemental questionnaires to both parties indicate that Commerce misinterpreted, quite reasonably, the initial responses of Gerber and Green Fresh so as to presume that Green Fresh actually exported some of the merchandise produced by Gerber and that Green Fresh had some role in the sale of Gerber’s merchandise. Neither party confined their inadequate responses to the initial questionnaires. Each party had the opportunity, in responding to the inquiries in the first supplemental questionnaires, to clarify that Gerber never provided Green Fresh with subject merchandise during the review, that Green Fresh did not export any of Gerber’s product to the United States, and that Green Fresh never took title to, or had any other role in, the sale of Gerber’s merchandise. Neither party did so. Instead, both Gerber and Green Fresh provided confusing and contradictory information in response to the first supplemental questionnaire. The record consisting of the questionnaires and the responses, when viewed as a whole, supports a finding that Commerce was caused by the deficient responses to direct significant time and resources to acquire information that the parties were obligated by statute and regulation to disclose at a much earlier point in the process. B. The Department’s Determination that Each Plaintiff Failed to Cooperate by Not Acting to the Best of Its Ability to Comply with a Request for Information Is Adequately Supported by Findings and Record Evidence If Commerce “finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information[,]” Commerce, “in reaching the applicable determination ... may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available.” 19 U.S.C. § 1677e(b). The statutory obligation to act to the best of its ability in complying with the agency’s information request “requires the respondent to do the maximum it is able to do.” Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed.Cir.2003). “Compliance with the ‘best of its ability’ standard is determined by assessing whether respondent has put forth its maximum effort to provide Commerce with full and complete answers to all inquiries in an investigation.” Id. Commerce made separate findings that Gerber and Green Fresh, for purposes of 19 U.S.C. § 1677e(b), failed to act to the best of their respective abilities in complying with the Department’s requests for information. These findings are supported by substantial evidence and satisfactorily explained in the Redetermination. See Redetermination at 37-41. The responses of Gerber and Green Fresh to the Department’s information requests fell far short of the standard imposed by § 1677e(b) even after Commerce, as required under § 1677m(d), provided both parties with the opportunity to remedy the deficiencies. Each plaintiff provided some responses that were misleading, evasive, or false with respect to the identity of the exporter and seller for some of the transactions in the review. They had the obligation to act to the best of their respective abilities in informing Commerce of the actual facts pertaining to those transactions. Rather than provide confusing, contradictory, and false responses, the parties should have communicated, clearly and unequivocally, and without delay, the materials facts, e.g., that Gerber did not supply subject merchandise to Green Fresh, that Gerber exported all of its own subject merchandise that was sold in the United States during the period of review, and that Green Fresh had no role in the sale of that merchandise. Gerber implied or explicitly stated to Commerce that Green Fresh exported Gerber’s merchandise and had a role in the sale of that merchandise, even after Commerce provided Gerber with the opportunity, as required under § 1677m(d), to remedy inaccurate, confusing, or otherwise deficient information. While Gerber, in its third supplemental response, provided a more accurate and comprehensive account regarding the execution of the twenty-four transactions at issue, even that response stated that Green Fresh would “amend[ ] its sales listing to reflect a total of 24 sales made on behalf of Gerber[.]” Gerber Third Supplemental Resp. at 2 (Dec. 23, 2002) (Confidential Admin. R. Doc. No. 42). Throughout the administrative review, from the initial Section A response to the third supplemental response, Gerber provided confusing, incomplete, and inaccurate responses. With respect to Green Fresh, substantial record evidence also supports the Department’s finding that Green Fresh did not act to the best of its ability to comply with the information requests of Commerce. Throughout the questionnaire responses, Green Fresh continued to provide contradictory information that it was a sales agent for Gerber or an exporter of Gerber’s merchandise. Only in its response to the second supplemental questionnaire did Green Fresh provide a detailed response indicating its limited role in providing Gerber with certain export documents. Green Fresh Second Supplemental Resp. at 1 (Dec. 23, 2002) (Confidential Admin. R. Doc. No. 43); see Rede-termination at 12. Even in its responses to that questionnaire, however, Green Fresh continued to report eleven transactions that it purportedly made on behalf of Gerber. Green Fresh Second Supplemental Resp. at 3 (Dec. 23, 2002) (Confidential Admin. R. Doc. No. 43). The record discloses that those transactions involved merchandise produced, sold, and exported by Gerber. As quoted and cited above in the discussion of the application of the “facts otherwise available” provision, Gerber and Green Fresh placed contradictory and confusing information on the record throughout the investigation. As Gerber I explained, the participation of the respondents in the export agency arrangement is not sufficient, by itself, to justify the application of the adverse inference provision in § 1677e(b) with respect to all of the specific information needed to calculate individual assessment rates. See Gerber I, 29 CIT at -, 387 F.Supp.2d at 1282-84. Nonetheless, each party was required to act to the best of its ability in supplying Commerce with the facts necessary to the determination and calculation of antidump-ing duty assessment rates, which includes the pertinent facts underlying the transactions involved in the review. Gerber and Green Fresh had the obligation, and multiple opportunities, to disclose the actual facts about Green Fresh’s limited role in certain transactions involving Gerber’s merchandise, but they failed to do so. C. The Selection of Facts Otherwise Available and the Application of Adverse Inferences to Twenty-Four Sales Transactions Commerce relied on the facts otherwise available and adverse inferences provisions in determining an antidumping duty rate for the twenty-four transactions for which Commerce determined that Gerber obtained the benefit of Green Fresh’s cash deposit rate in entering subject merchandise. Commerce included those twenty-four transactions in its calculation of individual assessment rates both for Gerber and for Green Fresh. Substantial record evidence and a reasoned explanation support the determination by Commerce to attribute those transactions to Gerber. Commerce, however, failed to support with substantial record evidence and also failed to explain adequately its reasoning for attributing to Green Fresh those same twenty-four transactions. As noted previously, Commerce determined Gerber to be the producer, seller, and exporter on those transactions. In selecting from among facts otherwise available, Commerce may rely on information derived from any information placed on the record of the administrative review. 19 U.S.C. § 1677e(b). The Court of Appeals for the Federal Circuit has noted that “in the case of an uncooperative respondent, Commerce is in the best position, based on its expert knowledge of the market and the individual respondent, to select adverse facts that will create the proper deterrent to noncooperation with its investigations and assure a reasonable margin.” F.LLI De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed.Cir.2000) (“De Ceceo”). However, as the Court of Appeals signaled in its reference to “a reasonable margin,” the Department’s discretion to choose from among the facts otherwise available is not unlimited. Id. (noting the intention of Congress that Commerce not “overreach reality” in applying § 1677e(a) and (b)). 1. Commerce Did Not Exceed Its Authority in Applying the Facts Otherwise Available and Adverse Inferences Provisions to Twenty-Four of Gerber’s Thirty-Four Sales Transactions The record evidence, summarized previously, supports the findings that Gerber withheld information, significantly impeded the review proceeding, and did not act to the best of its ability in responding to the Department’s requests for information pertaining to the identity of the exporter and seller on certain transactions. Even in its response to the Department’s inquiry in the third, and final, supplemental questionnaire, after multiple opportunities to correct and supplement its responses to the original questionnaire, Gerber’s responses to Commerce were not entirely satisfactory. As discussed above, Commerce asked Gerber in the third supplemental questionnaire to describe the respective roles of Gerber and Green Fresh in sales involving merchandise that was produced by Gerber but sold by Green Fresh. Gerber Third Supplemental Questionnaire at 2 (Nov. 22, 2002) (Confidential Admin. R. Doc. No. 37); Redetermination at 13. Gerber unsatisfactorily responded that twenty-four of its total of thirty-four transactions “were made through Green Fresh” and that “[w]e have conferred with Green Fresh and learned that they mistakenly did not report all of the sales made by it on our behalf.” Gerber Third Supplemental Resp. at 2 (Dec. 23, 2002) (Confidential Admin. R. Doc. No. 42); Redetermination at 13-14. Gerber further misinformed Commerce that Green Fresh was amending its sales listing to “reflect a total of 24 sales made on behalf of Gerber in response to their latest questionnaire.” Gerber Third Supplemental Resp. at 2 (Dec. 23, 2002) (Confidential Admin. R. Doc. No. 42); Redetermination at 13-14. These inaccurate responses demonstrate that Gerber, even at the conclusion of the questionnaire process, was incorrectly indicating to Commerce that the twenty-four transactions in question were, in some respect, Green Fresh’s sales transactions. Commerce invoked the facts otherwise available and adverse inference provisions with respect to those twenty-four sales transactions, assigning the transactions the rate of 198.63 percent; Commerce used the actual, transaction-specific information for the remaining ten transactions. The court concludes that except for the assignment of the 198.63 percent rate, the Department’s decision to do so was in accordance with law. Under 19 U.S.C. § 1677m(d), Commerce had the authority to “disregard all or part of the original and subsequent responses” and thereby treat the submitted information about the identity of the exporter and seller for those twenty-four transactions as information subject to the facts otherwise available and adverse inference provisions. Commerce was within its authority in concluding that because Gerber had not acted to the best of its ability in responding to particular information requests involving those twenty-four transactions, Gerber was not entitled to the benefit of § 1677m(e), under which Commerce is precluded from disregarding information that satisfies all criteria of § 1677m(e). 2. Commerce Has Not Justified the Assignment to Green Fresh of the Twenty-Four Sales Transactions Made by Gerber The record evidence summarized previously also supports the findings by Commerce that Green Fresh withheld information, significantly impeded the review proceeding, and did not act to the best of its ability by providing unsatisfactory responses to the Department’s information requests pertaining to the identity of the exporter and seller on some transactions involved in the administrative review. Those, however, were Gerber’s, not Green Fresh’s, transactions. The Redetermination does not present evidentiary support or adequate reasoning for attributing the same twenty-four transactions to two parties, i.e., to both Gerber and to Green Fresh, despite the finding that Gerber was the producer, seller, and exporter of the merchandise involved. In the Redetermination, Commerce stated the following as reasoning for assigning the twenty-four transactions to Green Fresh: [t]he 22 customs entry summaries Green Fresh provided in its August 20, 2002, 1st supplemental response for these 24 transactions (of which Gerber reported all 24 but Green Fresh only reported 11 to the Department) contain a Green Fresh manufacturer identification code (for 12 of them) or a Gerber manufacturer identification code (for the remaining 10). In either case, all 22 customs entry summaries indicate that -Green Fresh’s cash deposit rate, rather than Gerber’s, was used to post the antidumping duties for these sales at issue. Redetermination at 50 (footnotes omitted). The documentation cited by Commerce in the above-quoted segment of the Redeter-mination does not constitute evidence supporting the Department’s finding that it was appropriate to assign all, or any, of the twenty-four transactions to Green Fresh. As Commerce found according to the record evidence, Gerber was the importer of record for the merchandise on all twenty-four transactions and therefore was responsible for preparing all entry documentation submitted to Customs, including the listing of the manufacturer code. See id. at 29-30. The entry documentation prepared by Gerber identifies Green Fresh as the manufacturer for only twelve of the twenty-two entries. See Green Fresh First Supplemental Resp., Ex. ASI (Aug. 19, 2002) (Confidential Admin. R. Doc. No. 21). The evidence cited by Commerce links to