Full opinion text
TIMOTHY C. STANCE U, Judge. Plaintiffs China Kingdom Import & Export Co., Ltd. (“China Kingdom”), Yan-cheng Yaou Seafood Co., Ltd. (“Yan-cheng”), and Qingdao Zhengri Seafood Co., Ltd. (“Qingdao”) (collectively “plaintiffs”) contest the April 2003 final results of an administrative review of a 1997 antidump-ing duty order on imported freshwater crawfish tail meat (“Final Results”). See Freshwater Crawfish Tail Meat from the People’s Republic of China; Notice of Final Results of Antidumping Duty Administrative Review, 68 Fed.Reg. 19,504 (Apr. 21, 2003) (“Final Results”). The Final Results, issued by the International Trade Administration, United States Department of Commerce (“Commerce” or the “Department”), pertain to freshwater crawfish tail meat imported from the People’s Republic of China (“China” or the “PRC”) that was subject to the antidumping duty order (the “subject merchandise”) and entered for consumption during the period of September 1, 2000 through August 31, 2001 (the “period of review” or “POR”). Id. at 19,504-05. Plaintiffs argue that Commerce exceeded its authority, and failed to support its decision with substantial record evidence, when it applied the “facts otherwise available” and “adverse inferences” provisions of 19 U.S.C. § 1677e(a) and (b), respectively, in determining an antidumping duty assessment rate of 223.01 percent for China Kingdom and in subjecting Yancheng to the “PRC-wide” rate, which also is 223.01 percent. See Am. Br. in Supp. of Pis.’ Rule 56.2 Mot. for J. Upon the Agency R. 2-5 (“Pis.’ Am. Br.”). Invoking these provisions, Commerce rejected all data that China Kingdom and Yancheng had submitted during the administrative review in response to the Department’s information requests. See Final Results, 68 Fed.Reg. at 19,506; 19 U.S.C. §§ 1677e(a)-(b), 1677m(d)-(e) (2000). Commerce applied facts otherwise available and adverse inferences in determining the antidumping duty assessment rate for China Kingdom based on its finding that China Kingdom erroneously submitted, in its response to the Department’s questionnaire, certain information provided to it by its crawfish tail meat producer that did not pertain to the period of review but instead pertained to a prior time period. The data affected by the error were data used in calculating the normal value of the merchandise according to procedures set forth in 19 U.S.C. § 1677b(c) (2000), which are applicable to merchandise produced in nonmarket economy countries. Specifically, the affected data were data on the producer’s total production of crawfish tail meat and data pertaining to eight of the eleven factors of production. Final Results, 68 Fed.Reg. at 19,506; Issues and Decision Memorandum for the Final Results of the Antidumping Duty Administrative Review of Freshwater Crawfish Tail Meat from the People’s Republic of China: September 1, 2000 through August SI, 2001 at 22-25 (Apr. 14, 2003) (Public Admin. R. Doc. No. 259) (“Decision Mem.”). When China Kingdom attempted to remedy the deficiency by providing Commerce a submission with corrected data at the outset of the phase of the verification occurring at the location of its producer, Chaohu Daxin Foodstuff Co., Ltd. (“Daxin”), Commerce terminated the verification. Decision Mem. at 20, 22-25. Commerce rejected the substitute data, considering it to be new information that was unacceptable if submitted after the deadline set forth in its regulations. Id. Commerce found, for purposes of 19 U.S.C. § 1677e(b), that China Kingdom did not act “to the best of its ability” in providing the requested information. Id. On this basis, Commerce declined to use any of the information submitted by China Kingdom relevant to the antidumping duty assessment rate and, as an adverse inference, assigned to China Kingdom the assessment rate of 223.01 percent, which was the highest rate determined for any respondent in the administrative review. Final Results, 68 Fed.Reg. at 19,506; see 19 U.S.C. § 1677e(b). The court concludes, for the reasons discussed herein, that Commerce failed to make and support with substantial evidence findings on which to base its decision to resort to facts otherwise available under 19 U.S.C. § 1677e(a)(2) and that Commerce exceeded its authority when it rejected all data submitted by China Kingdom that were relevant to the calculation of an antidumping duty assessment rate. The court concludes that Commerce also acted contrary to law in assigning to China Kingdom, as an adverse inference pursuant to 19 U.S.C. § 1677e(b), an antidump-ing duty assessment rate of 223.01 percent. Commerce also applied facts otherwise available and adverse inferences in subjecting Yancheng to the 223.01 percent rate assigned to respondents who failed to establish independence from control of the government of the PRC (the “PRC-wide rate”) determined in the administrative review. Final Results, 68 Fed.Reg. at 19,-506. Commerce based its determination principally on its conclusion that Yancheng and its corporate affiliate, Qingdao, should be treated as a single entity for purposes of the review and its finding that Qingdao had failed to cooperate to the best of its ability when it refused to allow the Department to conduct a verification of its submitted information. Decision Mem. at 16-17. Although Yancheng consented to verification, Commerce refused to conduct a verification only of Yancheng, reasoning that under those circumstances Commerce was precluded from accomplishing a satisfactory verification of the single entity comprised of Yancheng and Qingdao. Id. at 17-18. In the absence of sufficient verified information, Commerce concluded that the Yancheng-Qingdao entity had not been shown to be free of control by the government of the PRC, that Commerce could not calculate for that entity a separate antidumping duty assessment rate and, accordingly, that the entries of Yancheng’s subject merchandise should be subjected to the PRC-wide rate. See id. 16-20. For the reasons discussed herein, the court concludes that Commerce acted in accordance with law in refusing to subject to the verification procedure the information submitted by Yancheng after Qingdao notified Commerce that Qingdao would not participate in verification. Yancheng and Qingdao did not contest, either in the administrative review or before the court, the Department’s decision to treat them as a single entity. In the absence of verification of the business records of Qingdao, the Department’s finding that it was unable to accomplish a satisfactory verification of the single entity Yancheng-Qingdao was supported by substantial evidence. Decision Mem. at 17-18. Lacking sufficient verified information pertaining to the single entity, Commerce acted in accordance with law in concluding that it was unable to determine for that single entity a separate antidumping duty assessment rate. The court, therefore, affirms the Department’s determination to include Yancheng in the 223.01 percent PRC-wide rate determined for the review. The court remands this matter to Commerce with instructions to redetermine the antidumping duty assessment rate for China Kingdom in conformity with this Opinion and Order. I. Background Commerce issued its antidumping duty order on freshwater crawfish tail meat from China in 1997. See Notice of Amendment to Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Freshwater Crawfish Tail Meat From the People’s Republic of China\ 62 Fed.Reg. 48,218 (Sept. 15, 1997) (“Order”). Approximately four years later, Commerce announced the opportunity to request the administrative review at issue in this case. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 66 Fed. Reg. 46,257 (Sept. 4, 2001). China Kingdom and Qingdao, exporters of freshwater crawfish tail meat to the United States, timely requested an administrative review. Letter from Garvey Schubert Barer to Sec’y of Commerce (Sept. 28, 2001) (Public Admin. R. Doc. No. 2). Domestic interested parties also timely requested an administrative review of Yancheng and certain other producers and exporters of freshwater crawfish tail meat from China. Letter from Adduci, Mastriani & Schaumberg, L.L.P. to Sec’y of Commerce (Sept. 28, 2001) (Public Admin. R. Doc. No. 3). In response to the requests, Commerce initiated the administrative review at issue. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 66 Fed.Reg. 54,195 (Oct. 26, 2001). In the preliminary results of the administrative review (“Preliminary Results”), and again in the Final Results, Commerce invoked facts otherwise available and adverse inferences in assigning China Kingdom an antidumping duty assessment rate of 223.01 percent. Freshwater Crawfish Tail Meat from the People’s Republic of China: Notice of Preliminary Results of Antidumping Duty Administrative Review, 67 Fed.Reg. 63,877, 63,880 (Oct. 16, 2002) (“Preliminary Results ”); Final Results, 68 Fed.Reg. at 19,506. As a result of the Department’s conclusion that Yan-cheng did not qualify for a separate rate, Yancheng, in the Preliminary and the Final Results, was subjected to the 223.01 percent rate as the PRC-wide rate. Preliminary Results, 67 Fed.Reg. at 63,880; Final Results, 68 Fed.Reg. at 19,506. A. The Inclusion of Incorrect Producer’s Data in China Kingdom’s Questionnaire Response In its questionnaire response, China Kingdom submitted to Commerce certain data provided to it by its producer, Daxin, that pertained, at least in part, to a time period prior to the period of review. Letter from Office of AD/CVD Enforcement VII, Import Admin., Dep’t of Commerce to Garvey Schubert Barer at 1 (Aug. 28, 2002) (Public Admin. R. Doc. No. 169) (“Letter Rejecting Information as Untimely ”); see also Letter from Garvey Schubert Barer to Sec’y of Commerce, Section D (Feb. 27, 2002) (Confidential Admin. R. Doc. No. 9); Letter from Garvey Schubert Barer to Sec’y of Commerce, Section D (Feb. 28, 2002) (Public Admin. R. Doc. No. 52) (“China Kingdom Questionnaire Resp.”). The data were required for the calculation of normal value of the subject merchandise according to the procedures of 19 U.S.C. § 1677b(c), under which Commerce determines normal value for goods produced in nonmarket economy countries. See 19 U.S.C. § 1677b(c). The calculation of normal value is based, in part, on the value of factors of production, including labor, raw materials, utilities, and representative capital cost, utilized in producing the subject merchandise. Id. § 1677b(c)(3). Commerce values the factors of production according to prices and costs of factors of production in a market economy country at a level of development comparable to the nonmarket economy country. Id. § 1677b(e)(4). Upon discovering the error at the beginning of the phase of the verification process that was conducted at the site of China Kingdom’s producer, Daxin, China Kingdom attempted to file a submission with substitute data, which it described as pertaining to the period of review. The substitute data pertained to the calculation of normal value with respect to eight of the eleven factors of production used to produce the subject merchandise and also supplied a new figure for Daxin’s total production of the subject merchandise during the period of review. Letter from Garvey Schubert Barer to Sec’y of Commerce at 1-2 (Aug. 13, 2002) (Confidential Admin. R. Doc. No. 49) (placing on the record the exhibits containing the substitute information and requesting public comment); Letter from Garvey Schubert Barer to Sec’y of Commerce at 1-2 (Aug. 14, 2002) (Public Admin. R. Doc. No. 165) (placing on the record the public version of the August 13, 2002 letter and exhibits of substitute information) (“Letter With Corrected Exhibits ”); see also Letter from Garvey Schubert Barer to Sec’y of Commerce (Aug. 14, 2002) (Public Admin. R. Doc. No. 166) (explaining that “7 of a total 13 containers of subject merchandise shipped by China Kingdom were in fact produced by Daxin in 2000” and that “[t]his formed the basis for reporting 2000 data in Daxin’s section D questionnaire response.”) (“Letter Explaining Deficiency in Prod. Data ”). When China Kingdom notified the Department’s verification team of the error affecting Daxin’s production-related data, the verification team stopped the verification and contacted Commerce officials in Washington. Antidumping Duty Administrative Review of Freshwater Crawfish Tail Meat from the People’s Republic of China: Verification Report for China Kingdom Import & Export Co., Ltd. at 10 (Sept. 16, 2002) (Public Admin. R. Doc. No. 173) (“China Kingdom Verification Report”). Commerce officials instructed the verification team to terminate the verification of China Kingdom, return the exhibits pertaining to the Daxin segment of the verification, and collect documentation sufficient to demonstrate that China Kingdom had submitted data on total crawfish tail meat production, and data on eight of the eleven factors of production, that pertained to a period prior to the period of review. Id. Commerce refused to accept the substitute submission, considering it an untimely filing of new factual information. Id. at 1, 10; Letter Rejecting Information as Untimely at 1; see also Preliminary Results, 67 Fed.Reg. at 63,879. In the Preliminary Results, on the basis of facts otherwise available and adverse inferences, Commerce preliminarily assigned an antidumping duty assessment rate of 223.01 percent to China Kingdom, which was the highest rate assigned to any producer or exporter in both the contested and previous administrative review and was equivalent to the PRC-wide rate. See Preliminary Results, 67 Fed.Reg. at 63,-879-80, 63,885. After considering comments submitted in response to the Preliminary Results, Commerce, in the Final Results, affirmed its findings that China Kingdom did not timely file certain information related to factors of production and failed to act to the best of its ability to comply with the Department’s requests for information. Final Results, 68 Fed.Reg. at 19,506; see also Decision Mem. at 22-25. Commerce also affirmed its determination that the application of facts otherwise available and adverse inferences was appropriate. Final Results, 68 Fed.Reg. at 19,506. Commerce again assigned to China Kingdom’s entries a rate of 223.01 percent. Id. B. The Department’s Treatment of Yancheng and Qingdao as a Single. Entity and the Refusal by Qingdao to Participate in the Verification Process During the review of Yancheng, Yan-cheng and Qingdao disclosed, in their consolidated responses to the Department’s questionnaires, that they “are related through a Hong Kong company that owns significant shares in both companies.” See Preliminary Results, 67 Fed.Reg. at 63,-878; see also Letter from Garvey Schubert Barer to Sec’y of Commerce, Section A Resp. at 1 (Mar. 12, 2002) (Public Admin. R. Doc. No. 56); Letter from Garvey Schubert Barer to Sec’y of Commerce, Section A at 1 (Mar. 12, 2002) (Public Admin. R. Doc. No. 57). Yancheng and Qingdao also furnished consolidated responses to three supplemental questionnaires. See Letter from Garvey Schubert Barer to Sec’y of Commerce (May 15, 2002) (Public Admin. R. Doc. No. 88); Letter from Garvey Schubert Barer to Sec’y of Commerce (June 5, 2002) (Public Admin. R. Doc. No. 112); Letter from Garvey Schubert Barer to Sec’y of Commerce (July 3, 2002) (Public Admin. R. Doc. No. 131). Prior to the verification process, Yan-cheng and Qingdao notified Commerce that Qingdao would not take part in the verification process due to financial difficulties. See Letter from Garvey Schubert Barer to Sec’y of Commerce (June 4, 2002) (Public Admin. R. Doc. No. 111). In the same letter, Yancheng and Qingdao informed Commerce that Yancheng “is willing to participate in verification and welcomes the Department to their facilities to verify their questionnaire responses.” Id. Commerce responded on August 2, 2002 that because Qingdao and Yancheng’s responses to sections A, C, and D of the questionnaires had been consolidated, non-participation of Qingdao in verification would preclude the Department from verifying any of Yancheng’s information in the consolidated submissions. Letter from Sec’y of Commerce to Garvey Schubert Barer (Aug. 2, 2002) (Public Admin. R. Doc. No. 153) (“Commerce Resp. to Qingdao Non Participation ”). Commerce notified Yancheng and Qingdao that it would treat Yancheng and Qingdao as a single entity in the administrative review. Id.; see 19 C.F.R. § 351.401(f)(1) (2002) (setting forth the regulation on “affiliated producers”). Commerce based its decision on a Hong Kong company’s common interest in both Yancheng and Qingdao, on record information establishing the consolidation by that Hong Kong company of the selling activities of Yancheng and Qingdao, and on the consolidation of Yancheng’s and Qingdao’s questionnaire responses. Freshwater Crawfish Tail Meat from the People’s Re public of China (PRC): Application of Total Adverse Facts Available for Qingdao Zhengri Seafood Co., Ltd. and Yancheng Yaou Seafood Co., Ltd. in the Preliminary Results of the Admin. Review for the Period Sept. 1, 2000 through Aug. 31, 2001 at 1 (Sept. 30, 2002) (Public Admin. R. Doc. No. 180); see Preliminary Results, 67 Fed.Reg. at 63,878. In the Preliminary Results, Commerce assigned to the entity Yancheng-Qingdao the 223.01 percent PRC-wide rate, reasoning that the application of adverse facts available was warranted because part of the single entity, Qingdao, “failed to cooperate to the best of its ability” by refusing to participate in verification and thereby preventing the verification of record information of the single entity. Preliminary Results, 67 Fed.Reg. at 63,880. Commerce stated that 19 U.S.C. § 1677e(a)(2)(D) “warrants the use of facts otherwise available in reaching a determination when information is provided, but cannot be verified.” Id. Commerce reasoned that because the single entity “did not allow on-site verification of its responses at [Qingdao], none of the information submitted regarding [Qingdao] could be verified, including its separate rate information.” Id. In the Final Results, Commerce affirmed its findings that Yancheng and Qingdao should be treated as a single entity and that Qingdao failed to act to the best of its ability to comply with the Department’s requests for information. Final Results, 68 Fed.Reg. at 19,506. On the basis of those findings, Commerce applied facts otherwise available and adverse inferences with respect to the subject entries of Yancheng. Id. Commerce explained that it could not verify the information submitted by Yancheng as a result of the refusal by Qingdao to fully cooperate in verification and the submission by Yancheng of improper certifications and contradictory record data. Id. Based on its conclusion that it was unable to determine a separate antidumping duty assessment rate for the single entity Yancheng-Qingdao, Commerce subjected all entries of Yancheng’s subject merchandise for the period of review to the PRC-wide rate of 223.01 percent. Id. In this action, plaintiffs move for judgment upon the agency record pursuant to USCIT Rule 56.2. Plaintiffs seek a court-ordered remand to Commerce for correction of the errors plaintiffs identify in the Final Results. II. Jurisdiction, Standing, and Standard of Review The court exercises jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(A) (2000) and 28 U.S.C. § 1581(c) (2000). Having participated as respondents in the administrative review proceeding culminating in the contested determination, China Kingdom, Yancheng, and Qingdao are “interested parties” within the meaning of 19 U.S.C. § 1677(9)(A) (2000) and, therefore, have standing, pursuant to 28 U.S.C. § 2631(c) (2000), to challenge the Department’s determination. Under the applicable standard of review, the court must hold unlawful any determination, finding, or conclusion that it finds to be unsupported by substantial evidence on the record or to be otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(l)(B)(i). III. Discussion With respect to China Kingdom, the court examines whether Commerce supported its findings with substantial record evidence and acted in accordance with law in applying facts otherwise available and adverse inferences to assign a 223.01 percent assessment rate to entries of China Kingdom’s subject merchandise for the period of review. As noted above, Commerce refused at the verification of China Kingdom’s producer to accept China Kingdom’s attempted submission of production-related data that China Kingdom described as pertaining to the correct period of review. Commerce terminated the verification of China Kingdom’s producer. Commerce rejected as untimely China Kingdom’s submission of the substitute data. With respect to Yancheng, the court analyzes whether Commerce supported with substantial record evidence its findings and acted in accordance with law in applying facts otherwise available and adverse inferences in subjecting entries of Yan-cheng’s subject merchandise to the 228.01 percent PRC-wide rate. Commerce made findings, which plaintiffs do not contest, supporting a conclusion that Yancheng and Qingdao should be treated as a single entity. Commerce further found that Qingdao refused to participate in verification and that Qingdao’s refusal to participate rendered unverifiable the information pertaining to Yancheng. A. Commerce Erred in Applying a 223.01 Percent Assessment Rate to China Kingdom In their Rule 56.2 motion, plaintiffs argue with respect to China Kingdom that in refusing the corrected data pertaining to Daxin’s production and in terminating verification, the Department failed to fulfill its obligation under 19 U.S.C. § 1677b(c) to calculate “the most accurate and representative dumping margin possible.” Pis.’ Am. Br. at 20-21 (citing Shandong Huarong General Corp. v. United States, 25 CIT 834, 838, 159 F.Supp.2d 714, 719 (2001)). According to plaintiffs, Commerce did not support with substantial record evidence its findings that China Kingdom did not timely submit its responses, did not provide verifiable data, and did not act to the best of its ability to comply with the Department’s request for information. Id. at 4-5, 19-24. They argue that, accordingly, the Department’s application of facts otherwise available and adverse inferences, and the assignment of the 223.01 percent assessment rate to entries of China Kingdom’s subject merchandise for the period of review, were not supported by substantial record evidence and were not in accordance with law. See id. at 5, 24-25. In the alternative, plaintiffs argue that if the record warrants the application of facts otherwise available and adverse inferences, Commerce should have used secondary information to calculate an individual rate for China Kingdom instead of applying the 223.01 percent PRC-wide rate. Id. at 26-29. For the reasons discussed below, the court concludes with respect to China Kingdom that Commerce did not act in accordance with law when invoking facts otherwise available under subsection (a) of 19 U.S.C. § 1677e and when using adverse inferences under subsection (b) of that section. Therefore, the court is unable to sustain the Final Results in assigning to China Kingdom the resulting 223.01 percent antidumping duty assessment rate. The court concludes, in addition, that the 223.01 percent rate is not a reasonably accurate estimate of an actual rate with respect to entries of China Kingdom’s merchandise subject to the review. 1. Commerce Committed Errors In Invoking Facts Otherwise Available under Paragraphs (A) and (B) of 19 U.S.C. § 16776(a)(2) Under subsection (a)(1) of § 1677e, the use of facts otherwise available potentially will occur when “necessary information is not available on the record.” 19 U.S.C. § 1677e(a)(l). In addition, facts otherwise available potentially will be used in the circumstances identified in any of the four subparagraphs of subsection (a)(2) of the section, which apply when an interested party or any other person (A) withholds information that has been requested by the administering authority ... under this subtitle, (B) fails to provide such information by the deadlines for submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 1677m of this title, (C) significantly impedes a proceeding under this subtitle, or (D) provides such information but the information cannot be verified as provided in section 1677m(i) of this title. Id. § 1677e(a)(2). If subsection (a)(1) applies, or if one of the four provisions of subsection (a)(2) applies, “the administering authority and the Commission shall, subject to section 1677m(d) of this title, use the facts otherwise available in reaching the applicable determination under this subtitle.” Id. § 1677e(a). In the Final Results, Commerce based its resort to facts otherwise available on the same analysis that it included in the Preliminary Results, stating that “[i]n the Preliminary Results, we applied facts available to China Kingdom pursuant to [19 U.S.C. § 1677e(a)(2)(A) and (B)] because it failed to provide total production and factors of production for the relevant POR in a timely manner.” Final Results, 68 Fed.Reg. at 19,506. The Final Results refer to the discussion at Comment 7 of the April 14, 2003 decision memorandum (“Decision Memorandum”), which the Final Results incorporate by reference. Id. at 19,505-06; see also Decision Mem. at 22-27. The Final Results also refer the reader, for further details, to an internal memorandum discussing the application to China Kingdom of facts otherwise available and adverse inferences. See Final Results, 68 Fed.Reg. at 19,506; Freshwater Crawfish Tail Meat from the People’s Republic of China (PRC): Application of Total Adverse Facts Available for China Kingdom Import & Export Co., Ltd. in the Preliminary Results of the Administrative Review for the Period 9/1/00-8/31/01 (Sept. 80, 2002) (Public Admin. R. Doc. No. 182) (“China Kingdom Adverse Facts Available Mem.”). a. Commerce Failed to Make the Requisite Finding In Resorting to Facts Otherwise Available under 19 U.S.C. § 1677e(a)(2)(A) The court cannot sustain the Department’s attempt to base its use of facts otherwise available on § 1677e(a)(2)(A). Because that provision applies only if “an interested party or any other person — (A) withholds information that has been requested by the administering authority ... under this subtitle,” Commerce was required to find that some specifically identified party, i.e., China Kingdom or some other person, e.g., Daxin, withheld the requested information. Commerce does not discuss any such finding in the Preliminary Results,' the Decision Memorandum, or the Final Results. Commerce provides no pertinent explanation of what record evidence would support such a finding and no other explanation of how the requirements of § 1677e(a)(2)(A) were satisfied in this case. The Final Results, while citing the Preliminary Results and incorporating the Decision Memorandum, contain no analysis with respect to § 1677e(a)(2)(A). The Preliminary Results explain, in a discussion of § 1677e(a)(2)(A) and (B), that “China Kingdom failed to provide total production and factors of production for the relevant POR in a timely manner.” Preliminary Results, 67 Fed.Reg. at 63,879. This statement does not constitute a finding that China Kingdom withheld information. Commerce did not make a finding that China Kingdom, for example, possessed the substitute Daxin information long before providing it to Commerce on August 8, 2002. Nor is there any finding or discussion of § 1677e(a)(2)(A) as it may have pertained to Daxin. In the Decision Memorandum, Commerce identified a finding that China Kingdom “failed to provide verifiable factors of production.” Decision Mem. at 22. This statement also fails as a finding that any person withheld information within the meaning of § 1677e(a)(2)(A). b. Commerce Erred in Relying on 19 C.F.R. § 851.301(b)(2) for its Resort to Facts Otherwise Available under 19 U.S.C. § 1677e(a)(2)(B) Commerce expressly invoked 19 C.F.R. § 351.301(b) in finding the substitute information untimely. The regulation, 19 C.F.R. § 351.301(b), establishes, as a due date for a submission of factual information “[f]or the final results of an administrative review, 140 days after the last day of the anniversary month, except that factual information requested by the verifying officials from a person normally will be due no later than seven days after the date on which the verification of that person is completed.” 19 C.F.R. § 351.301(b)(2) (2002). In its letter of August 28, 2002 to counsel for China Kingdom, Commerce characterized the submission of the substitute Daxin data and counsel’s August 14, 2002 follow-up letter as containing “unsolicited new factual information.” Letter Rejecting Information as Untimely at 1. In the Decision Memorandum, Commerce explained that “in accordance with section 19 CFR 351.301(b)(2) of the Department’s regulations, any submission of factual information is due no later than 140 days after the last day of the anniversary month — in this case, January 18, 2002 — unless specifically requested by the Department.” Decision Mem. at 25. Thus, Commerce concluded that the substitute Daxin information constituted new factual information for purposes of the review and further concluded that this information, having been submitted on August 8, 2002, was untimely given the January 18, 2002 due date set for submissions of such new factual information. Id. The court is not persuaded that the substitute Daxin information constituted what Commerce characterized as “unsolicited new factual information” to render appropriate the application of 19 C.F.R. § 351.301(b)(2). See Letter Rejecting Information as Untimely at 1. Commerce requested the original Daxin production-related information in section D of its questionnaire. See China Kingdom Questionnaire Resp., Section D (setting forth the questions asked in the original questionnaire issued by Commerce). In the Decision Memorandum, Commerce itself described the January 18, 2002 due date as inapplicable where a submission of factual information is “specifically requested by the Department.” Decision Mem. at 25. The record shows that the information that China Kingdom offered to the Commerce verification team on August 8, 2002 consisted of factual information, and calculations based on factual information, that were needed for the determination of normal value according to 19 U.S.C. § 1677b(c) and that were submitted by China Kingdom solely to correct its earlier response to the Department’s questionnaire. See Letter Rejecting Information as Untimely at 1. The record contains no evidence establishing or suggesting that China Kingdom submitted the substitute Daxin information for any purpose other than to correct the error that occurred when it submitted the incorrect information. China Kingdom submitted the original Daxin production-related information, which pertained to the incorrect time period, on February 27, 2002 as part of its response to section D of the Department’s questionnaire. China Kingdom Questionnaire Resp., Section D. Commerce had approved that date as an extended due date for China Kingdom’s questionnaire response. Letter from Sec’y of Commerce to Garvey Schubert Barer (Feb. 7, 2002) (Public Admin. R. Doc. No. 47). Commerce, in the Decision Memorandum, appears to adopt the paradoxical position that China Kingdom’s submission attempting to correct the February 27, 2002 questionnaire response would not have been timely unless made by January 18, 2002, i.e., more than a month before the original information was timely submitted. Under that reasoning, China Kingdom could never correct the error in its February 27, 2002 questionnaire response, even if it had discovered the error and attempted to correct it immediately. As discussed later in this Opinion, Commerce appears to have offered contradictory grounds for its conclusion of untimeliness by stating in the Decision Memorandum that “China Kingdom had numerous opportunities to submit the requested information subsequent to the January 18, 2002 regulatory deadline by virtue of the Department’s three supplemental questionnaires (issued May 8, June 18, and July 24, 2002), but failed to do so.” Decision Mem. at 25. The Decision Memorandum does not expressly state that, under this alternate explanation, 19 C.F.R. § 351.301(b)(2) does not apply. However, the Decision Memorandum can be read to indicate that, despite 19 C.F.R. § 351.301(b)(2), the corrected information would have considered to be timely filed had it been submitted with the response to any of the supplemental questionnaires, including the response to the July 24, 2002 supplemental questionnaire, which was due and submitted on July 31, 2002. Letter from Garvey Schubert Barer to Sec’y of Commerce (July 31, 2002) (Public Admin. R. Doc. No. 151). In summary, the court is unable to sustain the Department’s reliance on 19 C.F.R. § 351.301(b)(2) as grounds for rejecting as untimely the substitute Daxin information and invoking facts otherwise available under 19 U.S.C. § 1677e(a)(2)(B). Although the court accords substantial deference to the Department’s interpretation and application of its own regulations, see Torrington Co. v. United States, 156 F.3d 1361, 1363 (Fed.Cir.1998), the court on the record facts of this case cannot sustain the Department’s application of 19 C.F.R. § 351.301(b)(2), in which Commerce mis-characterized the substitute Daxin information as “unsolicited new factual information” and invoked the January 18, 2002 due date established under § 351.301(b)(2) while inconsistently acknowledging subsequent due dates found nowhere in § 351.301(b)(2). c. Because the Substitute Daxin Information Was Submitted After the Questionnaire Phase of the Review, Commerce Did Not Err in Considering the Information Untimely for Purposes of 19 U.S.C. § 1677e(a)(2)(B) The court next considers whether the Department’s finding that China Kingdom’s submission of the substitute Daxin information was untimely, although not supported by its reliance on 19 C.F.R. § 351.301(b)(2), is supported by its statement in the Decision Memorandum that “China Kingdom had numerous opportunities to submit the requested information subsequent to the January 18, 2002 regulatory deadline by virtue of the Department’s three supplemental questionnaires (issued May 8, June 18, and July 24, 2002), but failed to do so.” Decision Mem. at 25. Although the Decision Memorandum expressly discusses 19 C.F.R. § 351.301(b)(2), the court interprets the further discussion in the Decision Memorandum to indicate that Commerce intended the above-quoted statement referring to supplemental questionnaires as a separate reason for its finding that the substitute Daxin information was untimely for purposes of 19 U.S.C. § 1677e(a)(2)(B). The Department’s regulations state generally that Commerce will specify certain information when making a written request to an interested party for a response to a questionnaire: (2) Questionnaire responses and other submissions on request .... (ii) In the Secretary’s written request to an interested party for a response to a questionnaire or for other factual information, the Secretary will specify the following: the time limit for the response; the information to be provided; the form and manner in which the interested party must submit the information; and that failure to submit requested information in the requested form and manner by the date specified may result in use of facts available under [19 U.S.C. § 1677e] and [19 C.F.R.] § 351.308. 19 C.F.R. § 351.301(c)(2)(ii); see 19 C.F.R. § 351.301(c)(2)(iii) (providing that interested parties will be allowed at least 30 days from the date of receipt to respond to the full initial questionnaire). Commerce did not expressly rely on § 351.301(e)(2) in the Decision Memorandum, and instead, as discussed above, relied principally, and erroneously, on § 351.301(b)(2). The initial questionnaire sent to China Kingdom is not included in the record of this proceeding, but the inclusion of a questionnaire sent to another party, which includes form language satisfying the notification requirement of § 351.301(c)(2)(h), suggests that China Kingdom’s questionnaire also included the form language. Letter from Ojfice of AD/CVD Enforcement VII, Import Admin., Dep’t of Commerce to Garvey Schubert Barer at App. 1-3, 1-4 (Jan. 18, 2002) (Public Admin. R. Doc. No. 37) (setting forth the definition of “Facts Available” and describing the findings required for the application of facts otherwise available and adverse inferences). Moreover, China Kingdom does not raise in this litigation a procedural defect pertaining to the questionnaire. The record contains a letter, dated February 7, 2002, by which Commerce approved China Kingdom’s request to extend to February 27, 2002 the February 13, 2002 due date for China Kingdom’s response to sections A, C and D of the questionnaire. Based on the record evidence, the court has no basis to conclude that Commerce failed to satisfy the requirements of § 351.301(c)(2)(ii) to establish an extended due date of February 27, 2002 for the response to that questionnaire and to place China Kingdom on notice that its failure to supply the requested information by the due date for the questionnaire “may result in use of facts available” under 19 U.S.C. § 1677e. Commerce unquestionably had discretion to extend the due date for the questionnaire response. See 19 C.F.R. § 351.302(b) (2002). Therefore, Commerce acted within its discretion in determining in the Decision Memorandum that the final, extended due date by which China Kingdom timely could have submitted the substitute Daxin information was in a response to one of the supplemental questionnaires, the last of which, issued on July 24, 2002, had a due date of July 31, 2002. Because the substitute Daxin information was submitted on August 8, 2002, Commerce did not err in treating the submission of the substitute Daxin information as untimely for purposes of 19 U.S.C. § 1677e(a)(2)(B). d. Commerce Erred in Concluding that 19 U.S.C. § 1677m(d) Did Not Apply Because China Kingdom, Not Commerce, Discovered the Error in the Originally-Submitted Daxin Information The valid determination by Commerce that China Kingdom’s August 8, 2002 submission of the substitute Daxin information was untimely for purposes of 19 U.S.C. § 1677e(a)(2)(B) does not resolve fully the question of whether Commerce acted in accordance with law in disregarding that information in favor of facts otherwise available. In the instance of a determination under § 1677e(a)(2)(B), the use of facts otherwise available as a substitute for the untimely submitted information is expressly qualified by § 1677m(d). See 19 U.S.C. § 1677e(a) (stating that “... the administering authority ... shall, subject to section 1677m(d) of this title, use the facts otherwise available in reaching the applicable determination under this subtitle”) (emphasis added). Section 1677m(d) addresses the situation confronting Commerce at the time China Kingdom attempted to submit the substitute data. In pertinent part, the section provides that [i]f the administering authority ... determines that a response to. a request for information under this subtitle does not comply with the request, the administering authority ... shall promptly inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person with an opportunity to remedy or explain the deficiency in light of the time limits established for the completion of ... reviews under this subtitle. 19 U.S.C. § 1677m(d). The section goes on to provide that if the party submits further information in response to the deficiency, Commerce may disregard that further submission if it first finds that “such response is not satisfactory” or that “such response is not submitted within the applicable time limits.” 19 U.S.C. § 1677m(d)(l)-(2). There can be no dispute that, for purposes of § 1677m(d), a “deficiency” existed with respect to the originally-submitted figure for Daxin’s total crawfish tail meat production and with respect to the originally-submitted calculations for eight of the eleven factors of production that were affected by the error. It is also apparent from the record-and defendant does not contest-that China Kingdom submitted “further information in response to such deficiency.” 19 U.S.C. § 1677m(d). The question before the court, then, is whether Commerce, in failing to address the conditions imposed by § 1677m(d), had the authority to “disregard all ..of the ... subsequent responses” in favor of the use of facts otherwise available. Id. During the administrative review, Commerce concluded that it had such authority, stating that “[b]ecause the Department was unaware of any deficiencies in [China Kingdom’s] production and factors of production information, [§ 1677m(d)] does not apply.” China Kingdom Adverse Facts Available Mem. at 4. In the Preliminary Results, Commerce again concluded that it had no obligation under § 1677m(d) to provide China Kingdom an opportunity to remedy or explain the deficiency. Commerce reasoned that § 1677m(d) did not apply because “[p]rior to the verification, the Department had no means of determining whether the data came from the relevant POR, and therefore could not inform the respondent that its response was deficient.” Preliminary Results, 67 Fed. Reg. at 63,879. Before the court, defendant argues that § 1677m(d) “limits the opportunity to remedy or explain deficiencies to those which Commerce identifies and [of which it] informs the interested party.” Def.’s Resp. to the Court’s Mar. 20, 2006 Questions 9. According to defendant, “the opportunity to remedy or explain a deficiency described in section 1677m(d) of the statute does not apply to the situation where a respondent, months after making the submission, identifies a deficiency in its submission.” Id. The court finds no merit in the Department’s conclusion of law that § 1677m(d) did not apply because Commerce, until being informed of the problem by China Kingdom, was unaware of the deficiency in the originally-submitted total production information and the calculated information pertaining to eight of the eleven factors of production. Nor is there merit in the parallel argument that defendant makes before the court, i.e., that Commerce was correct in concluding that § 1677m(d) of the statute does not apply if a respondent discloses the factual basis for a finding that its own submission has a deficiency. The procedure set forth in § 1677m(d) applies “[i]f the administering authority ... determines that a response to a request for information ... does not comply with the request_” 19 U.S.C. § 1677m(d). Commerce, in the course of the administrative review, made exactly that determination with respect to the originally-submitted Daxin information. That Commerce made the determination of deficiency only after China Kingdom brought the problem to the Department’s attention does not support the Department’s conclusion that § 1677m(d) was inapplicable. The fact that Commerce was not the first to discover the error is irrelevant to the Department’s obligations under that statutory provision. Section 1677m(d) does not condition those obligations on the manner in which Commerce discovered facts causing it to draw the conclusion of deficiency. Nor does anything in the statute provide that § 1677m(d) is inapplicable if Commerce is unable to discover the deficiency prior to verification. The court accords deference to the Department’s formal statutory constructions. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372, 1382 (Fed.Cir.2001). Here, however, the court finds no ambiguity or silence in § 1677m(d) that would justify resort to the second step in a Chevron analysis. See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778 (stating that “[fjirst, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress”). A construction of § 1677m(d) that renders it inapplicable if the Department was unaware of the deficiency prior to verification cannot be reconciled with the unambiguous legislative intent expressed in the plain language of that provision. Nor does § 1677m(d) excuse Commerce from its obligations if the submitting party, not Commerce, is the first to discover and disclose the facts leading to the Department’s determination of deficiency. e. Commerce Erred In Failing to Make and Support a Finding under 19 U.S.C. § 1677m(d) that Allowing the Opportunity to Remedy or Explain the Deficiency Would Be Impracticable In Light of the Time Limits for Completing the Administrative Review Under 19 U.S.C. § 1677m(d), Commerce was required “to the extent practicable” to provide China Kingdom the opportunity to remedy or explain the deficiency “in light of the time limits established for the completion of ... reviews under this subtitle.” 19 U.S.C. § 1677m(d). However, by deciding, based on a misreading of the statute and flawed reasoning, that § 1677m(d) did not apply, Commerce deprived itself of the opportunity to make the finding that § 1677m(d) required. Specifically, that finding was whether it was “practicable” to allow China Kingdom the opportunity to remedy or explain the deficiency “in light of the time limits established for the completion of ... reviews-” Id. The court discerns no finding, and no discussion, on this critical question in the Final Results, which adopt without elaboration the approach announced in the Preliminary Results. As does the Decision Memorandum, the latter fail to reach the practicability issue because the Department incorrectly concluded that § 1677m(d) had no applicability in the circumstances presented. The Final Results refer to the analysis in the Decision Memorandum. Final Results, 68 Fed.Reg. at 19,506. Accordingly, the court considers whether the requisite finding on impracticability is stated in the Decision Memorandum. The Decision Memorandum contains the following sentence: “Since the information was submitted during verification, instead of in a response to one of the several questionnaires issued to China Kingdom, the Department did not have an opportunity to analyze the information in the context of this review.” Decision Mem. at 25. This sentence is not reasonably construed as an explicit finding that it was impracticable for Commerce to provide China Kingdom the opportunity to remedy or explain the deficiency. Even were it deemed to be such a finding, it would not withstand judicial review because it is entirely conclusory. Commerce cited no record evidence, and provided no reasoning, that could have supported the missing finding. Had Commerce addressed whether it was practicable to allow China Kingdom to remedy or explain the deficiency “in light of the time limits established for the completion of ... reviews under this subtitle,” it would have considered the time remaining according to 19 U.S.C. § 1675(a)(3)(A). 19 U.S.C. § 1677m(d); see 19 U.S.C. § 1675(a)(3)(A) (2000). The statute directs Commerce to issue preliminary results within 245 days after the last day of the month in which occurs the anniversary of the date of publication of the order for which the review was requested (“anniversary month”), and final results within 120 days after publication of the preliminary results, with an exception under which Commerce may extend the time periods if meeting these time limits is not practicable. 19 U.S.C. § 1675(a)(3)(A). Under the exception, Commerce may extend the 245-day period to 365 days and the 120-day period to 180 days. Id. If the time for issuing the preliminary determination is not extended, the statute allows final results to be issued within 300 days after publication of the preliminary results. Id. For this review, the last day of the anniversary month was September 30, 2001. The statute, therefore, established an extended due date of September 30, 2002 for the Department’s preliminary results; the Preliminary Results, as published on October 16, 2002, in fact show a date of decision of September 30, 2002. Similarly, the Commerce determination comprising the Final Results was dated April 14, 2003, which was the 180th day following publication of the Preliminary Results on October 16, 2002. The record establishes that the substitute information was provided to Commerce on August 8, 2002, the first day of verification taking place at the Daxin facility. Because 53 days remained before the Preliminary Results were due and more than eight months remained before the Final Results were due, no reason is apparent why affording China Kingdom, at the least, the opportunity to explain the deficiency would have been impracticable. Instead of inviting China Kingdom to make a submission explaining the deficiency, as 19 U.S.C. § 1677m(d) required if doing so was practicable, Commerce did the opposite. Commerce rejected and returned to China Kingdom’s counsel an unsolicited letter that counsel for China Kingdom submitted on August 14, 2002. Letter Explaining Deficiency in Prod. Data. Commerce deemed the letter unacceptable as “unsolicited new factual information” under 19 C.F.R. § 351.301(b)(2). See Letter Rejecting Information as Untimely at 1-2. That letter constituted part of China Kingdom’s attempted explanation of the deficiency itself. The substance of the letter is contained in three sentences, as follows: On behalf of China Kingdom Import & Export Co., Ltd. (“China Kingdom”), we are filing this letter as a follow up to our letter dated August 13, 2002 regarding materials associated with the verification of Chaohu Daxin Foodstuff Co., Ltd. (“Daxin”). We wish to state for the record that 7 of a total of 13 containers of subject merchandise shipped by China Kingdom were in fact produced by Daxin in 2000. This formed the basis for reporting 2000 data in Daxin’s section D questionnaire response. Letter Explaining Deficiency in Prod. Data. The rejected letter provided information pertinent to the nature of the deficiency and how it occurred, which information Commerce appears to have declined to consider. The rejected information appears relevant to the circumstances of the deficiency because four of the months of the period of review, which was September 1, 2000 through August 31, 2001, occurred in 2000. Having concluded that 19 U.S.C. § 1677m(d) did not apply, Commerce also avoided making a determination on whether it was practicable, in light of the time remaining before September 30, 2002, to allow China Kingdom the opportunity to remedy or to remedy to some extent, as opposed to the opportunity only to explain, the deficiency. The record indicates that the Commerce verification team was prepared to conduct a verification of the originally-submitted Daxin information on August 8, 2002. See China Kingdom Verification Report at 10. From the record and from the Department’s stated reasons for discontinuing the entire verification procedure, it is not apparent that a choice to subject the substitute numerical Daxin information to verification, instead of the originally-submitted Daxin information, would have consumed significant additional time. Because the substitute information concerned numerical calculations used in determining normal value based on Daxin’s production data, verification and use of that information would not have required Commerce to re-examine all the other information compiled during the review for the determination of China Kingdom’s assessment rate. Thus, the Decision Memorandum is unconvincing in its claimed lack of “an opportunity to analyze the information in the context of this review.” See Decision Mem. at 25. According to the Department’s own analysis, the substitute Daxin information would have been considered timely if filed by July 31, 2002 but was untimely as submitted on August 8, 2002. Id. Because of the lack of the requisite finding and a lack of explanation, it is not apparent why a delay of eight days rendered use of the substitute information impracticable when viewed in the context of a due date of September 30, 2002 for the Preliminary Results and April 14, 2003 for the Final Results. Before the court, defendant argues that “spending additional time at the verification of China Kingdom ... would have been at least ‘inconvenient’ ” and that “[a]l-lowing large new submissions which change critical portions of a response and requiring that they be evaluated in a short time span while officials are at verification would make the conduct of verification extremely burdensome.” Defi’s Resp. to the Court’s Mar. 20, 2006 Questions 15-16. This post hoc justification about inconvenience and “large new submissions” does not explain why subjecting to verification the substitute Daxin information instead of the originally-submitted Daxin information would have been so burdensome as to make use of the substitute information impracticable. The proffered corrections involved one figure for total production and eight calculated figures for various factors of production. Although alluding vaguely to difficulties arising because verification occurred after the questionnaire phase and remotely from the Department’s headquarters, defendant does not explain satisfactorily in its arguments to the court how the corrections would “make the conduct of verification extremely burdensome.” Id. Moreover, to conclude that verification of the substitute information would have been “extremely burdensome” begs the question why Commerce did not make a finding of impracticability under § 1677m(d). Commerce must support with specific factual findings the required determination of practicability under § 1677m(d). Remedying any deficiency in a questionnaire response typically will require submission of new information. A mere finding that the remedy would require Commerce to consider new information is not commensurate with a finding that allowing the interested party to effect the remedy would be impracticable under the circumstances, given the statutory time limits. And it is obvious that Commerce may not avoid conducting the review in full compliance with the statute simply because in some instances it may be inconvenient to do so. Defendant also argues to the court that verifying and using the substitute information “would be unfair to the petitioners and other interested parties in the proceeding by depriving them of an opportunity to meaningfully comment on China Kingdom’s information and preventing Commerce from allocating its resources in a way to ensure the timely completion of the administrative review.” Def.’s Resp. to the Court’s Mar. 20, 2006 Questions 16. Defendant’s argument is unconvincing. As the record shows, the substitute information was offered at the outset of the phase of the China Kingdom verification that was being conducted at Daxin’s facility. Again, no reason is apparent from the record why the verification team could not have subjected the substitute information to a verification procedure had it not been ordered to refrain from doing so. When viewed in the context of the time then remaining for completion of the administrative review and the opportunities to comment that remained for the other parties participating in the review, defendant’s argument is unpersuasive. Defendant also points to decisions of the Court of International Trade, which it interprets as upholding the Department’s practice of accepting information at verification only if that information relates to minor adjustments to, or corroboration or clarification of, information already on the record. Def.’s Resp. to the Court’s Mar. 20, 2006 Questions 6-7 (citing Chia Far Industrial Factory Co. v. United States, 28 CIT -, 343 F.Supp.2d 1344 (2004); Maui Pineapple Co. v. United States, 27 CIT 580, 595, 264 F.Supp.2d 1244, 1257 (2003); Reiner Brach GmbH & Co. KG v. United States, 26 CIT 549, 558-60, 206 F.Supp.2d 1323, 1333-34 (2002); and Coalition for the Pres. of Am. Brake Drum and Rotor Aftermarket Mfrs. v. United States, 23 CIT 88, 94-95, 44 F.Supp.2d 229, 237 (1999)). Commerce, in its letter to China Kingdom in preparation for verification, stated: Please note that verification is not intended to be an opportunity for submitting new factual information. New information will be accepted at verification only when (1) the need for that information was not evident previously, (2) the information makes minor corrections to information already on the record, or (3) the information corroborates, supports, or clarifies information already on the record. Please provide a list of any corrections to your responses to the verifiers at the beginning of verification. Please note that any such submissions must be filed with the Department, and appropriate copies served on interested parties, within two business days of the commencement of verification. Letter from Office of AD/CVD Enforcement VII, Import Admin., Dep’t of Commerce to Garvey Schubert Barer at 2 (July 26, 2002) (Public Admin. R. Doc. No. 150); see also Letter Rejecting Information as Untimely at 2. In this case, it is not necessary for the court to reach the issue of whether the policy or practice as stated in the letter is consistent with the statute, including in particular 19 U.S.C. § 1677m(d). The narrow issue presented is whether the Department’s practice, as stated in the letter and as applied in the subject review, sufficed to excuse Commerce from making the various individual determinations required by 19 U.S.C. § 1677m(d). The court concludes that it does not. Even had the practice been promulgated as a regulation-which it was not-it could not correctly be construed to nullify the procedural requirement unequivocally stated in § 1677m(d): an interested party situated as was China Kingdom must receive the opportunity to remedy or explain the deficiency if allowing that opportunity is practicable in light of the statutory time limits for completing the review. The mere existence of the practice was not a substitute for the Department’s complying with the statute and is not a basis on which Commerce correctly could have concluded, as it did during the review, that § 1677m(d) had no applicability. Because this case presents a situation in which Commerce committed specific errors in applying 19 U.S.C. §§ 1677e(a) and 1677m(d), it presents issues not discussed in the opinions of the Court of International Trade that defendant cited. See Def.’s Resp. to the Court’s Mar. 20, 2006 Questions 6-7. For the reasons discussed above, the court concludes that Commerce committed legal error in using facts otherwise available without first finding, pursuant to § 1677m(d), that it would be, or would not be, practicable to permit China Kingdom to remedy or explain the deficiency given the time limits for completion of the review. f. Commerce Erred In Failing to Make a Finding under 19 U.S.C. § 1677m(d)(l) or (2) Because Commerce considered 19 U.S.C. § 1677m(d) inapplicable, Commerce did not make a determination under § 1677m(d)(l) or (2). Commerce did not determine whether the substitute Daxin information was unsatisf