Full opinion text
PUBLIC OPINION AND ORDER TIMOTHY C. STANCEU, Judge. Plaintiffs Jinan Yipin Corporation, Ltd. (“Jinan Yipin”) and Shandong Heze International Trade and Developing Company (“Shandong”) contest certain aspects of a final determination (“Final Results”) issued by the International Trade Administration, United States Department of Commerce (“Commerce” or “the Department”) in the eighth administrative review of the antidumping duty order on fresh garlic (“subject merchandise”) imported from the People’s Republic of China (“China” or the “PRC”). See Fresh Garlic From the People’s Republic of China: Final Results of Antidumping Duty Administrative Review and New Shipper Reviews, 69 Fed. Reg. 33,626 (Jun. 16, 2004) {“Final Results” ) Before the court are Jinan Yi-pin’s and Shandong’s motions for judgment upon the agency record under USCIT Rule 56.2. In support of its motion, plaintiff Jinan Yipin contends that Commerce acted contrary to law: (1) in applying, through the use of the “facts otherwise available” and “adverse inferences” provisions of 19 U.S.C. § 1677e (2000), an antidumping duty rate of 376.67 percent to the sales of subject merchandise that Jinan Yipin’s U.S. sales affiliate made to “Houston Seafood,” one of its customers in the United States, based on possible affiliation between Jinan Yipin and Houston Seafood; (2) when, in calculating the U.S. affiliate’s indirect selling expenses, Commerce increased the indirect selling expenses reported by Jinan Yipin based on a resort to facts otherwise available and adverse inferences; (3) in adjusting the selling price of Jinan Yipin’s subject merchandise for certain inspection fees which, according to plaintiffs, would not have been incurred but for the existence of the antidumping duty order; and (4) in determining surrogate values for garlic seed, water, and packing cartons. Jinan Yipin’s Rule 56.2 Mot. for J. Upon the Agency R. (“Jinan Yipin’s Mot.”); Br. in Supp. of Jinan Yi-pin’s Rule 56.2 Mot. for J. Upon the Agency R. 2-4 (“Jinan Yipin’s Br. in Supp.”). Plaintiff Shandong, an exporter of subject merchandise, joins in Jinan Yipin’s arguments challenging the determination of surrogate values for garlic seed, water, and packing cartons. Shandong Heze’s Rule 56.2. Mot. for J. Upon the Agency R. 1-2 (“Shandong’s Mot.”); Shandong Heze’s Letter in Supp. of Jinan Yipin’s Rule 56.2 Mot. for J. Upon the Agency R. 1. Defendant United States argued initially that the Final Results are fully in accordance with law and therefore should be sustained in all respects. Def.’s Mem. in Opp’n to Pis.’ Rule 56.2 Mots, for J. Upon the Agency R. 1 (Def.’s Mem. in Opp’n). In a post-hearing submission, defendant changed its apparent position with respect to the issue of possible affiliation between Jinan Yipin and Houston Seafood, requesting that the court grant a voluntary remand for the limited purpose of allowing Commerce to investigate that issue further. Def.’s Supplemental Br. in Resp. to the Court’s Questions of May 22, 2006 at 2 (“Def.’s Supplemental Br.”). Jinan Yipin opposes such a remand. Reply of Jinan Yipin to Def.’s Post-Hearing Br. 9-10 (“Jinan Yipin’s Reply to Def.’s Supplemental Br.”). Fresh Garlic Producers Association and its individual members, Christopher Ranch, L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company, Inc. (collectively “defendant-intervenors”), are domestic producers of garlic that were petitioners in the antidumping duty investigation resulting in the antidumping duty order. They intervened in support of the position of defendant United States in this litigation but did not submit briefs or participate in the hearing conducted by the court on plaintiffs’ motion for judgment upon the agency record. The court concludes that the Final Results are, in some respects, unsupported by substantial evidence on the agency record and otherwise contrary to law. Accordingly, the court will remand the matter to Commerce for reconsideration and redetermination in accordance with this Opinion and Order. I. Background Commerce issued its antidumping duty order on imports of fresh garlic from China in 1994. Antidumping Duty Order: Fresh Garlic From the People’s Republic of China, 59 Fed.Reg. 59,209 (Nov. 16, 1994). In 2002, Commerce conducted a new shipper review of Jinan Yipin. In that review, Commerce determined that “[t]he weighted-average dumping margin for subject merchandise manufactured and exported by Jinan Yipin for the period November 1, 2000, through October 31, 2001 is 0.00 percent.” Fresh Garlic From the People’s Republic of China: Final Results of Antidumping Duty New Shipper Review, 67 Fed.Reg. 72,139, 72,140 (Dec. 4, 2002) (“Jinan Yipin New Shipper Review” ). Commerce subsequently initiated the administrative review at issue in this action, the eighth administrative review, for the period November 1, 2001 to October 31, 2002 (“period of review” or “POR”) and subjected to that review entries of subject merchandise exported by Jinan Yipin and Shandong. Initiation of Antidumping and Countervailing Duty Admin. Reviews, 67 Fed.Reg. 78,772, 78,-772-73 (Dec. 26, 2002). Commerce issued the preliminary results of the eighth administrative review in December 2003 (“Preliminary Results”). See Fresh Garlic from the People’s Republic of China: Preliminary Results of Anti-dumping Duty Admin. Review and New Shipper Reviews, 68 Fed.Reg. 68,868 (Dee. 10, 2003) (“Preliminary Results”). In the Preliminary Results, Commerce preliminarily assigned to Jinan Yipin a weighted average percentage antidumping duty margin of 168.06 percent. Preliminary Results, 68 Fed.Reg. at 68,873. Commerce further preliminarily determined that Shandong did not make sales of subject merchandise below normal value for the period of review. Id. Commerce issued the Final Results in June 2004. Final Results, 69 Fed.Reg. 33,626. Commerce recalculated the weighted average percentage margin for entries of Jinan Yipin’s merchandise, reducing it to 115.81 percent. Id. at 38,629. Contrary to the Preliminary Results, Commerce also determined that Shandong had sold merchandise at prices below normal value. Commerce calculated a weighted average percentage antidumping duty margin of 43.30 percent for Shandong’s merchandise. Id. Jinan Yipin and Shandong each commenced an action under 19 U.S.C. § 1516a (2000) to contest the Final Results. The court consolidated the cases. Each plaintiff moves for judgment upon the administrative record. II. Discussion The court exercises jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000), under which the Court of International Trade is granted exclusive jurisdiction of any civil action commenced under 19 U.S.C. § 1516a. 28 U.S.C. § 1581(c). The court reviews the Final Results on the basis of the agency record. See 28 U.S.C. § 2640(b) (2000); 19 U.S.C. § 1516a(b)(l)(B)(i). Upon such review, the court must “hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B)(i). “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 addresses below the following issues that plaintiff Jinan Yipin raised in its motion for judgment upon the agency record: (A) whether Commerce lawfully applied “facts otherwise available” and “adverse inferences” under 19 U.S.C. § 1677e when it applied an antidumping duty rate of 376.67 percent to the sales of subject merchandise made by the U.S. affiliate of Jinan Yipin to Houston Seafood; (B) whether Commerce, in calculating the U.S. affiliate’s indirect selling expenses, lawfully resorted to facts otherwise available and adverse inferences to increase the indirect selling expenses reported by Jinan Yipin; (C) whether Commerce lawfully adjusted the constructed export price of Jinan Yipin’s subject merchandise to account for certain inspection fees; and (D) whether Commerce lawfully determined surrogate values for garlic seed, water, and packing cartons. Finally, the court considers Shandong’s challenge to Commerce’s determination of surrogate values for garlic seed, water, and packing cartons. In this context the court addresses defendant’s arguments that Shandong’s motion does not comply with the court’s Rules, that Shandong failed to exhaust its administrative remedies, and that Shandong is not entitled to relief because Jinan Yipin’s arguments are company-specific and therefore do not show that Commerce’s determinations for Shandong’s factors of production are unsupported by substantial evidence on the record. A. Commerce Erred in Applying a S76.67 Percent Antidumping Duty Rate to the Sales of Jinan Yipin’s Subject Merchandise to Houston Seafood Under the antidumping laws, anti-dumping duty represents the amount by which the “normal value” of the imported subject merchandise exceeds the “export price” or the “constructed export price” for that merchandise. 19 U.S.C. § 1673 (2000). In an administrative review of an antidumping duty order, Commerce is required to determine “(i) the normal value and export price (or constructed export price) of each entry of the subject merchandise, and (ii) the dumping margin for each such entry.” Id. § 1675(a)(2)(A) (2000). For sales of subject merchandise made to an unaffiliated purchaser, Commerce uses “export price.” See id. § 1677a(a). For sales of subject merchandise made to an affiliated purchaser, Commerce must determine a “constructed export price.” See 19 U.S.C. § 1677a(b). Jinan Yipin sold subject merchandise in the United States through an affiliated U.S. sales company, American Yipin Produce Company (“American Yipin”). Commerce therefore was required to determine a constructed export price. See id. Under § 1677a(b), Commerce was required to determine constructed export price according to the price at which the subject merchandise was first sold, or agreed to be sold, in the United States to a purchaser not affiliated with Jinan Yipin, with various adjustments. Id. Some of Jinan Yipin’s subject merchandise was sold to Houston Seafood. Thus, determining an antidump-ing duty margin for the merchandise sold to Houston Seafood required Commerce to determine whether Jinan Yipin and Houston Seafood were “affiliated” for purposes of § 1677a(b). To determine whether entities are affiliated, Commerce is to apply 19 U.S.C. § 1677(33), which sets forth the statutory definition of “affiliated persons.” If Commerce concluded that Jinan Yipin and Houston Seafood were affiliated persons under § 1677(33) when the sales to Houston Seafood were made, Commerce then would have been required to determine constructed export price according to the price at which the subject merchandise was first resold to a purchaser unaffiliated with Jinan Yipin. See id. The court will address the Department’s findings regarding the issue of affiliation of Jinan Yipin and Houston Seafood by considering (1) whether Commerce actually determined that Jinan Yipin and Houston Seafood were affiliated, (2) whether Commerce supported with substantial record evidence any findings related to a determination of such affiliation, and (3) whether Commerce supported with substantial record evidence certain findings necessary to support rebanee on facts otherwise available and adverse inferences in determining the antidumping duty rate for sales of subject merchandise to Houston Seafood. 1. The Final Results Present Vague and Inconsistent Conclusions on the Issue of Affiliation Between Jinan Yipin and Houston Seafood The Final Results are ambiguous and vague as to whether Commerce actually determined that Jinan Yipin and Houston Seafood were affiliated. In its response to the Department’s questionnaire, Jinan Yi-pin reported the sales that American Yipin made to Houston Seafood as sales to an unaffiliated party. Commerce, in the Final Results, appears to have rejected that characterization. Commerce stated in the Final Results that Jinan Yipin did not provide “correct and thorough responses” to Commerce’s questions before, during and after verification, and that this inadequacy related to the issue of “[wjhether Jinan Yipin reported some sales to an affiliated party as unaffiliated-party sales.... ” Final Results, 69 Fed.Reg. at 33,627. This statement implies that, due to alleged inadequacies in Jinan Yipin’s responses to its inquiries, Commerce was unable to determine whether Jinan Yipin and Houston Seafood were affiliated. Commerce then stated in the Final Results that to address this inadequacy, “[Commerce] selected a rate of 376.67 percent to apply as adverse facts available to Jinan Yipin’s sales to an affiliated customer that it reported as unaffiliated-party sales transactions.” Id. at 33,627-628 (emphasis added) (stating further that “the Department has applied adverse facts available to the sales to Jinan Yipin’s affiliated customer ... because Jinan Yipin failed to identify affiliated parties and, in particular, its affiliations to Houston Seafood ... in its questionnaire responses.” (emphasis added)). This sentence, in apparent contradiction to the discussion where Commerce determined it did not have sufficient information, expresses a determination by Commerce that Jinan Yipin and Houston Seafood indeed were affiliated within the meaning of the statute and that Jinan Yi-pin, through a failure to respond to the best of its ability to Commerce’s requests for information, incorrectly reported the sales as sales that occurred between unaffiliated entities. In a lengthy internal memorandum (“Decision Memorandum”), which the Final Results incorporate by reference, Commerce discusses the affiliation issue but is similarly vague as to its conclusion with respect to affiliation. Issues and Decision Mem. for the Admin. Review and New Shipper Reviews of the Antidumping Duty Order on Fresh Garlic from the People’s Republic of China (June 7, 2004) (Admin.R.Doc. No. 254) (“Decision Mem,.”); see Final Results, 69 Fed.Reg. at 83,627. The Decision Memorandum refers to another internal memorandum, the “FA Memorandum,” in stating as follows: The Department did not indicate in the FA Memorandum that the information which it discovered so late in the proceeding indicated that Houston Seafood was affiliated with American Yipin. What we did determine in the FA Memorandum, and we are clarifying in this decision, is that Jinan Yipin did not cooperate to the best of its ability in providing information pertaining to all of its affiliates during the POR. Thus, it is no surprise that some unanswered questions remain in the record of this review. This is a direct result of American Yi-pin’s inadequate responses to the Department’s questionnaires. Decision Mem. at 75-76 (emphasis added) (citing Fresh Garlic from the People’s Republic of China — Preliminary Results of Admin. Review for the Period Nov. 1, 2001, through Oct. 31, 2002: Use of Facts Otherwise Available for Jinan Yipin Corp., Ltd. (Jinan Yipin) (Dec. 1, 2003) (Admin R. Doc. No. 176) (“FA Mem.”)). The quoted language in the Decision Memorandum appears ambiguous because of its reference to Jinan Yipin’s alleged failure to cooperate to the best of its ability in providing information pertaining to all of its “affiliates,” a term that might be construed to include Houston Seafood. A conclusion of actual affiliation is not equivalent to a conclusion that the Department was unable to make an affiliation determination because of a party’s inadequate responses to its inquiries. If, for example, Commerce’s theory had been that Jinan Yipin’s inadequate responses to its inquiries prevented Commerce from determining whether or not affiliation between Jinan Yipin and Houston Seafood existed at the time that sales of subject imported garlic were made to Houston Seafood, Commerce would have been required to satisfy the statutory requirements of 19 U.S.C. § 1677e(a) for the use of “facts otherwise available” and the requirements of 19 U.S.C. § 1677e(b) for treatment of the two entities as if they were affiliated, as an adverse inference. See 19 U.S.C. § 1677e(a), (b). Commerce does not unambiguously state that such was its theory; to the contrary are the several indications of a conclusion of affiliation. A conclusion of actual affiliation, whether for all of the period of review or for some identified portion of it, could be sustained only on the basis of clearly-expressed findings of fact that are supported by substantial evidence on the record. The court would have to engage in guesswork to decide whether Commerce found affiliation for some portion of the period of review, for all of the period of review, or not at all. The court, therefore, lacks a single and consistent ground upon which to evaluate the Final Results. In reviewing a determination of an administrative agency, a court may not choose from among alternate or inconsistent theories that the agency puts forth. “It will not do for a court to be compelled to guess at the theory underlying an agency’s action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.” SEC v. Chenery Corp., 332 U.S. 194, 196— 97, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). The lack of clarity compels the court to view the Final Results as resting on vague and inconsistent conclusions on the question of whether, and as to what period of time, Commerce found actual affiliation between Jinan Yipin and Houston Seafood. This shortcoming in the Final Results is sufficient, standing alone, to require a remand to the Department for reconsideration and redetermination. 2. Commerce Has Not Made Findings of Fact Sufficient to Support a Conclusion of Affiliation Between Jinan Yi-pin and Houston Seafood During the Period of Review Although the Department’s inconsistent expressions of its conclusions are alone sufficient to preclude the court from sustaining the Final Results, the court discerns additional shortcomings in the Department’s analysis of the affiliation issue. Commerce did not make findings of fact that are sufficient to support a conclusion that affiliation, as defined in 19 U.S.C. § 1677(33), existed between Jinan Yipin and Houston Seafood during the entire period of review or during a specific segment of it. Commerce, in the Final Results and the Decision Memorandum, expresses few clear findings of fact relevant to the potential affiliation of Jinan Yipin and Houston Seafood and addresses inadequately record evidence to the contrary. In the FA Memorandum, Commerce concluded that there was a “substantial likelihood of affiliation” between Jinan Yi-pin and Houston Seafood during the period of review. FA Mem. at 6. Commerce stated that “Houston Seafood and American Yipin could be considered affiliated for purposes of the Department’s analysis” based on a finding of family affiliation, as defined in 19 U.S.C. § 1677(33)(A). Decision Mem. at 74-75. Commerce made a factual finding that an employee of American Yipin, Mr. Henry Lee, who served as the sales manager of American Yipin during some portion of the period of review, was in a position to control the prices that Jinan Yipin charged Houston Seafood at the same time that his brother, Mr. Edward Lee, held an ownership interest in Houston Seafood. Id. at 74; FA Mem. at 6. Commerce considered Edward Lee, as a result of his ownership interest in Houston Seafood, to have been in a position to influence or control the prices that Houston Seafood paid. According to Commerce, “[i]n terms of the statutory language, Edward Lee, as a co-owner, controlled Houston Seafood, and his ‘affiliated’ brother, as sales manager, controlled American Yi-pin’s commercial decisions during part of the POR.” Decision Mem. at 74. In support of an apparent conclusion that affiliation existed during some portion of the period of review, apparently the portion beginning on November 1, 2001 and ending on March 29, 2002, Commerce expressed in the Decision Memorandum a finding that American Yipin and Houston Seafood “negotiated at least two transactions during this time....” Id. Commerce also found, and Jinan Yipin does not dispute, that Edward Lee began serving as sales manager for American Yipin at some point during the period of review. According to Commerce, Edward Lee had stated at verification that he became involved with American Yipin in August 2002 and that his involvement resulted in the relocation of American Yipin to Louisiana, where he resided. FA Mem. at 6. Jinan Yipin stated in its response to Commerce’s first supplemental questionnaire that American Yipin moved its offices from Houston, Texas to Westwego, Louisiana in September 2002. Letter from Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP to Sec’y of Commerce (June 10, 2003), Attach, at 8-9 (Supplemental Questionnaire Resp. for Jinan Yipin Corp., Ltd.) (Admin.R.Doc. No. 84) (“First Supplemental Questionnaire Resp.”). Disputing the Department’s affiliation analysis, Jinan Yipin directs the court to its having filed on the administrative record a contract for the sale of Edward Lee’s shares in Houston Seafood and proof of payment for this sale “indicat[ing] that Mr. Lee had sold his entire interest in Houston Seafood in March of 2002, approximately six months prior to the start of his employment with American Yipin.” Jinan Yipin’s Br. in Supp. 9. Jinan Yipin also points to a letter that Houston Seafood filed for the record “confirming that Edward Lee had not been involved with Houston Seafood since the sale of his ownership interest in March 2002.” Id. at 10. The record contains evidence of a sale of Edward Lee’s shares in Houston Seafood that occurred on March 29, 2002. See FA Mem. at 4. Although Commerce, in the FA Memorandum, raised vague questions about Edward Lee’s credibility and the proof of the sale of the shares, Commerce not only acknowledged the existence on the record of evidence that the divestiture of the shares occurred on that date but also identified a “purchaser of the Houston Seafood shares from Edward Lee during the period of review.” Id. Commerce made no finding of fact to the contrary. The court concludes that Commerce found as a fact that the sale of Edward Lee’s interest in Houston Seafood occurred during the period of review and that Commerce acknowledged record evidence that the sale occurred on March 29, 2002. Although Commerce’s apparent theory was that Henry Lee served as the sales manager of American Yipin during the portion of the period of review that began on November 1, 2001 and ended on March 29, 2002, the Decision Memorandum devotes insufficient attention to the question of whether substantial record evidence establishes the actual time period during which Henry Lee served as American Yi-pin’s sales manager. Jinan Yipin argues that “American Yipin’s payroll records demonstrate that Henry Lee began his employment with American Yipin in July 2002” and that “[t]he first American Yipin payroll record for Henry Lee appears on July 31, 2002.” Jinan Yipin’s Br. in Supp. 15-16 (citing U.S. Sales Verification of Jinan Yipin Corp., Ltd., in the 2001/2002 Admin. Review of the Antidumping Duty Order of Fresh Garlic from the People’s Republic of China (Nov. 24, 2003), Ex. 6-A (Confidential Admin. R. Doc. No. 39) (“Confidential Verification Report”)). The evidence Commerce considered to be to the contrary is a statement in Commerce’s verification report: “Mr. Edward Lee, the sales manager of American Yipin, explained that his brother, Mr. Henry Lee, was the sales manager for the company when it was located in Texas.” U.S. Sales Verification of Jinan Yipin Corp., Ltd., in the 2001/2002 Admin. Review of the Anti-dumping Duty Order of Fresh Garlic from the People’s Republic of China 3 (Nov. 24, 2003) (Admin.R.Doc. No. 167) (“Verification Report”). This paraphrase of Edward Lee’s statement at verification is not inconsistent with the payroll evidence that Henry Lee began his employment at American Yipin in July 2002 (when, according to Jinan Yipin’s questionnaire response, the company was still located in Houston, Texas). It does not constitute substantial evidence that Henry Lee was the sales manager of American Yipin on or prior to March 29, 2002. Among the questions the court asked the parties following oral argument was the following: “What specific evidence establishes an affiliation between American Yipin and Houston Seafood for any portion of the period of review?” Letter from Timothy C. Stanceu, Judge, to Counsel 2 (May 22, 2006). Defendant responded that “at verification, Commerce learned for the first time that Edward Lee was American Yipin’s sales manager and that Henry Lee, Edward Lee’s brother, preceded Edward Lee as American Yipin’s sales manager” and that “[a]t no time did Edward Lee, or any other American Yipin employee, allege that anyone else was sales manager of American Yipin during the period of review except for Henry Lee and Edward Lee.” Def.’s Supplemental Br. 20. This argument is unpersuasive. Like the Decision Memorandum, defendant’s argument fails to address the question of whether Edward Lee owned an interest in Houston Seafood at the same time that his brother was American Yipin’s sales manager. Defendant’s argument that no one at American Yipin alleged that there was another sales manager who served during the period of review is unconvincing in the absence of a factual finding, supported by record evidence, that Commerce ever asked a representative of American Yipin the question whether Henry Lee, or anyone else, served as sales manager of American Yipin between November 1, 2001 and March 29, 2002. Defendant also responded that “Commerce’s finding of affiliation between Houston Seafood and American Yipin is supported by other information in the record, as well[,]” mentioning that “Commerce found that Houston Seafood’s customer list identified several of Edward Lee’s other affiliated companies as customers, and Houston Seafood was even listed as a customer on the customer lists of some of the other affiliated companies.” Id. at 21 (citing FA Mem. at 5). Citing the FA Memorandum, defendant argues that “[i]n fact, Commerce determined that the relationship between all of these entities was ‘complex and fluid in terms of both time and control’ and that ‘Edward Lee at different points in time seems to have controlled, or shared control with others of, the pricing and sales functions of the various companies discussed above.’ ” Id. at 22 (quoting FA Mem. at 5). This argument misses the point. Evidence of affiliations of Edward Lee with customers of Houston Seafood are not evidence of an affiliation of Jinan Yipin, through American Yipin, with Houston Seafood. Defendant also argued that “Commerce also found that American Yipin’s payment terms with Houston Seafood were ‘on average more advantageous than the terms offered to American Yipin’s other customers.’ ” Id. The negotiation of the time period in which a buyer may pay a seller for merchandise may be the product of various factors other than affiliation. A finding that Houston Seafood was allowed more than the average time period to pay for merchandise is insufficient to support the legal conclusion of affiliation according to the criteria of 19 U.S.C. § 1677(33), under which “a person shall be considered to control another person if the person is legally or operationally in a position to exercise restraint or direction over the other person.” 19 U.S.C. § 1677(33). Citing a questionnaire response of Jinan Yipin stating that “ ‘certain sales had post-invoice billing adjustments[,]’ ” defendant also argues that “Commerce explained this meant that for ‘merchandise shipped in April and possibly even later’ it was possible that prices were determined while Edward Lee owned Houston Seafood.” Def.’s Supplemental Br. 23 (quoting First Supplemental Questionnaire Resp.). This argument rests on speculation, not on findings of fact that are supported by substantial evidence. Commerce appears to have assumed that the term “post-invoice billing adjustments” necessarily refers to renego-tiations of sales contracts, an assumption that is not grounded in specific findings or evidence. Moreover, as discussed previously, the record lacks substantial evidence that Henry Lee began employment at American Yipin on or before March 29, 2002. Commerce has failed to support with substantial record evidence its apparent finding of fact that Edward Lee’s ownership interest in Houston Seafood on and before March 29, 2002 had the potential to affect sales that Jinan Yipin or American Jipin made to Houston Seafood at any time during the period of review, regardless whether those sales were made before, on, or after March 29, 2002. In its supplemental brief, defendant requests that the court remand this matter to Commerce “to allow further inquiry into Houston Seafood and its owner’s relationships with Edward Lee and his affiliates during the period of review” and to allow Commerce “to inquire as to the terms of negotiations and sales of garlic from Jinan Yipin.... ” Def.’s Supplemental Br. 24. Jinan Yipin, while seeking a remand for redetermination, opposes defendant’s proposed voluntary remand and specifically opposes the reopening of the record for the collection of additional evidence on the affiliation issue, on the ground that the record contains no ambiguity regarding Commerce’s reasoning in its finding of affiliation between Jinan Yipin and Houston Seafood and its decision to apply facts otherwise available and adverse inferences. Jinan Yipin’s Reply to Def.’s Supplemental Br. 9-10. Because of the absence of essential findings of fact and the lack of substantial evidence supporting a finding that Henry Lee was the sales manager of American Yipin when Edward Lee held an ownership interest in Houston Seafood, the court views as unsatisfactory Commerce’s analysis of affiliation, or possible affiliation, between American Yipin and Houston Seafood. As discussed later in this opinion, the court will issue a remand order that addresses the affiliation issue. That order allows a reopening of the record for a limited purpose with respect to the affiliation issue. 3. The Final Results Cannot Be Sustained Upon Commerce’s Findings that Jinan Yipin Withheld Information on the Affiliation Issue or Substantially Impeded Commerce’s Access to Information Needed to Resolve that Issue Subsection (a) of 19 U.S.C. § 1677e directs Commerce to use “facts otherwise available” when “necessary information is not available on the record” or when any of four conditions specified in subpara-graph (a)(2) is met. 19 U.S.C. § 1677e(a). Among the four conditions are the situations in which a party “withholds information that has been requested by the administering authority” or “significantly impedes a proceeding under this subtitle.” Id. § 1677e(a)(2)(A), (C). In the Final Results, Commerce reiterated the conclusion it had reached in the Preliminary Results with respect to § 1677e(a), ie., Commerce concluded that resort to facts otherwise available was warranted because Jinan Yipin “did not provide information critical to the calculation of an an-tidumping duty margin and impeded the conduct of the administrative review by not providing correct and thorough responses to [the Department’s] questions, before, during, and following verification.” Final Results, 69 Fed.Reg. at 33,627. The court concludes that certain of the findings of fact on which Commerce based its resort to facts otherwise available and adverse inferences were not supported by substantial record evidence. Commerce stated in the Final Results that “the Department has applied adverse facts available to the sales to Jinan Yipin’s affiliated customer ... because Jinan Yi-pin failed to identify affiliated parties and, in particular, its affiliations to Houston Seafood and Bayou Dock in its questionnaire responses.” Id. at 33,628. To the extent that this finding pertains to the sales made to Houston Seafood, it cannot be sustained upon judicial review because it presumes that Jinan Yipin and Houston Seafood are affiliated parties. As discussed above, the Final Results express vague and inconsistent conclusions on the issue of affiliation between Jinan Yipin and Houston Seafood. Moreover, defendant now seeks leave of the court to investigate that issue further. Defendant nevertheless advocates that the court sustain Commerce’s use of facts otherwise available based on Commerce’s findings that Jinan Yipin withheld requested information and significantly impeded the review. The court is unable to do so because the affiliation analysis in the Final Results invokes 19 U.S.C. § 1677e(a)(2)(A), the “withholds information” provision, and 19 U.S.C. § 1677e(a)(2)(C), the “significantly impedes a proceeding” provision, essentially on the premise that Jinan Yipin’s responses to questions withheld from Commerce the fact of Jinan Yipin’s affiliation with Houston Seafood — an affiliation that Commerce does not unambiguously find to have existed and for which the record lacks substantial evidence. See 19 U.S.C. § 1677e(a)(2)(A), (C). In its supplemental brief, defendant attempts to justify the Department’s conclusions that Jinan Yipin withheld requested information, and significantly impeded the review, by discussing various questions in section A of the Department’s questionnaire and Jinan Yipin’s responses. Def.’s Supplemental Br. 5-11. Defendant concludes that “[i]n summary, although there were multiple opportunities for Jinan Yipin to provide information about American Yi-pin and Edward Lee (and the affiliated customer, Houston Seafood) in response to the Section A questionnaire, Jinan Yipin repeatedly failed to provide this information.” Id. at 10. This argument is unpersuasive because defendant fails to identify any specific requests for information in the original questionnaire that required Jinan Yipin to disclose Edward Lee’s employment by American Yipin as sales manager or his ownership interest in Houston Seafood. Defendant argues that Jinan Yipin should have interpreted certain questions about Jinan Yipin’s corporate structure and management that were presented in Section A of the questionnaire as requests for information pertaining to American Yi-pin. Id. at 8-10. As an example, defendant directs the court to Commerce’s asking Jinan Yipin, in Question A.2.1 of the original questionnaire, to “[pjlease identify the people who currently manage your company and explain how they were selected for these positions[,]” arguing that Edward Lee’s role as sales manager of American Yipin should have been disclosed in the response. Id. at 8 (internal quotation marks omitted). The shortcoming in Commerce’s argument is that the quoted question, in asking for information about “your company,” cannot reasonably be construed as a request for information about another company with which Jinan Yipin is affiliated. Defendant argues that “anyone who has participated in previous administrative reviews would be aware that Commerce considers the management of affiliated companies just as essential to its antidumping analysis as the management of respondent’s headquarters, and in some respects, such as calculating the constructed export price, even more essential.” Id. at 9. The court does not agree with defendant’s argument. If, as defendant argues, it was essential and routine for Commerce to be provided with information about the identity of managers of separate but affiliated companies, then Commerce needed to request that specific information. Defendant maintains that “[a]s with any other question, if Jinan Yi-pin had believed the term ‘company’ was unclear in Question A.2.I., the proper procedure would have been to ask Commerce for clarification, rather than providing no response whatsoever.” Id. The implication of defendant’s argument is that Jinan Yi-pin should have interpreted the word “company” or the words “your company” according to something other than the ordinary and unambiguous meaning. The court is unable to conclude that Jinan Yi-pin was remiss in interpreting the word “company” to refer to Jinan Yipin or that Jinan Yipin should have sought “clarification” on Commerce’s use of that term. According to defendant’s argument, Commerce, due to Jinan Yipin’s failure to disclose requested information in Section A of the questionnaire, “(1) did not know Edward Lee was involved in this review, (2) did not know Houston Seafood existed under a different name on the customer list for Jinan Yipin, (3) did not know Edward Lee was affiliated with or owned Houston Seafood at ANY point in time, and (4) essentially knew nothing about American Yipin’s activities during the period of review.” Id. at 10-11. As to the first and third points, the court is unable to find in Section A any information request by Commerce that required disclosure of Edward Lee’s involvement in the review or his ownership interest in Houston Seafood. Similarly, as to the second point, the fact that Houston Seafood was listed under a different name on Jinan Yipin’s customer list does not support a conclusion that Jinan Yipin withheld requested information. The fourth point in the quoted statement from defendant’s brief — that Commerce essentially knew nothing about American Yipin’s activities during the period of review — is not an accurate characterization of the record facts. Jinan Yipin disclosed in its Section A response the fact that American Yipin, located in Westwego, Louisiana, was its sales affiliate in the United States. Letter from Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP to Sec’y of Commerce (Feb. 21, 2003), Attach. 1 at 11 (Section A Resp. of Jinan Yipin Corp., Ltd.) (Admin.R.Doc. No. 42). As defendant acknowledges, Jinan Yipin also informed Commerce in its Section A response that “its ‘president and vice president,’ as well as the ‘principals and sales manager of its U.S. affiliate, American Yipin’ were ‘authorized to negotiate sales.’ ” Def.’s Supplemental Br. 8. Defendant argues that the Department’s first supplemental questionnaire presented Jinan Yipin “with another opportunity to explain American Yipin [sic ] and Edward Lee’s affiliations.” Id. at 11. However, the essential question is not whether the first supplemental questionnaire was such an opportunity. The essential question is whether Jinan Yipin’s responses withheld information relevant to a conclusion of affiliation between Houston Seafood and Jinan Yipin (either directly or through its affiliation with American Yipin) that Commerce actually requested. The record evidence consisting of the actual questions and responses does not support Commerce’s finding that such information was withheld. Defendant fails to show that any of the questions in the first supplemental questionnaire specifically directed, or otherwise required, Jinan Yipin to provide the name of American Yipin’s sales manager. Defendant points specifically to supplemental question A.2.a, which asked Jinan Yipin to “ ‘identify any positions that your owners, directors and managers hold with other companies and/or entities[,]’ ” arguing that “[t]his was a perfect opportunity for Jinan Yipin to report Houston Seafood’s relationship with Edward Lee, a sales manager during the period of review, yet Jinan Yipin chose not to provide this information, instead responding that ‘none’ of ‘Jinan Yipin’s owners, directors, or managers hold any positions with other companies.’ ” Id. at 11 (quoting Supplemental Questionnaire A.2.a); see First Supplemental Questionnaire Resp. 2. Jinan Yi-pin cannot logically be faulted for failing to provide information beyond the scope of the question that Commerce asked. Following verification, Commerce sent a questionnaire (“third supplemental questionnaire”) to Jinan Yipin. In the first question, after stating that Houston Seafood (and two other companies, Louisiana Newpack and Bayou Dock Seafood (“Bayou Dock”)) appeared to have been affiliated with American Yipin and Jinan Yipin for at least part of the period of review, Commerce asked Jinan Yipin to respond to Section A of the original questionnaire “with regard to these companies” and to provide official copies of certain documents related to Houston Seafood, Louisiana Newpack, and Bayou Dock. Letter from Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP to the Sec’y of Commerce (Nov. 12, 2003), Attach, at 1 (3rd Supplemental Questionnaire for Jinan Yipin Corp., Ltd.) (Admin.R.Doc. No. 161). Jinan Yipin responded that the Department was incorrect and that “[r]ecord evidence in this review already demonstrates that there is no ‘affiliation’ within the established meaning of that term between American Yipin or Jinan Yipin and Hosu-ton [sic] Seafood Corp., Louisiana New-pack and Bayou Dock.” Id. Jinan Yipin provided materials related to Louisiana Newpack and Bayou Dock with the response and indicated it would provide the Houston Seafood materials under separate cover. Id. at 2, Ex. 1. Commerce did not provide a satisfactory explanation of why Jinan Yipin, in its response to the third supplemental questionnaire, should be considered to have withheld requested information about a possible relationship between Houston Seafood and Jinan Yipin or American Yi-pin. Also unexplained is why, if Commerce still was uncertain after verification as to the existence of such a relationship, the third supplemental questionnaire made no attempt to obtain additional information or clarification relevant to determining the date on which Henry Lee began his employment with American Yi-pin. In summary, the court is unable to find in the administrative record substantial evidence to support a finding that Jinan Yi-pin withheld information relevant to the issue whether Jinan Yipin was affiliated with Houston Seafood within the meaning of 19 U.S.C. § 1677(33) or significantly impeded the review with respect to that issue. Therefore, the court is unable to sustain Commerce’s reliance on “facts otherwise available” under 19 U.S.C. § 1677e(a)(2)(A) or (C). A On Remand, Commerce Must Redetermine the Weighted Average Percentage Antidumping Duty Margin for Jinan Yipin and May Not Treat the Sales of Subject Merchandise to Houston Seafood that Were Negotiated After March 29, 2002 as Affiliated Sales Commerce expressed no findings of fact upon which the court could sustain a conclusion that an affiliation between Jinan Yipin and Houston Seafood could have existed after March 29, 2002. Commerce’s affiliation analysis depended on Edward Lee’s and Henry Lee’s family relationship. As discussed previously, Commerce made a finding of fact, based on evidence on the record, that Edward Lee sold his ownership interest in Houston Seafood during the period of review, and Commerce acknowledged record evidence that the sale occurred on March 29, 2002. Commerce made no findings of fact to the contrary. Commerce also found as a fact that at least two sales to Houston Seafood were negotiated during that period. Commerce’s assigning of the 376.67 percent antidumping duty rate to the remainder of the sales of Jinan Yipin’s garlic to Houston Seafood that occurred during the period of review was, therefore, contrary to Commerce’s own findings of fact and without a rational basis. Commerce’s attempt to justify its application of the 376.67 percent rate to sales after March 29, 2002 through resort to facts otherwise available and adverse inferences fails when viewed in the context of the findings of fact that Commerce made and did not make. Moreover, as discussed previously, Commerce’s findings of fact concerning an alleged withholding of information and impeding of the review are unsupported by substantial record evidence. For all of these reasons, the court concludes that Commerce, on remand, must recalculate Jinan Yipin’s weighted average percentage antidumping duty margin to correct the error that occurred when Commerce treated as affiliated party sales the sales to Houston Seafood that were negotiated on and after March 29, 2002. As a consequence of Commerce’s own findings of fact and the errors discussed above, Commerce, on remand, may not treat sales of Jinan Yipin’s subject merchandise to Houston Seafood that were negotiated after March 29, 2002 as affiliated sales. The assignment of the 376.67 percent rate to the two or more transactions that Commerce found to have been negotiated during the period beginning November 1, 2001 and ending March 29, 2002 is also contrary to law, but for different reasons. Commerce concluded that an affiliation or possible affiliation existed between Jinan Yipin and Houston Seafood during that period based on its apparent finding that Henry Lee began his employment with American Yipin prior to July 2002. As discussed previously, the record as a whole lacks substantial evidence to support any such finding. The evidence consisting of the July 31, 2002 payroll record is inconsistent with such a finding, and the paraphrase of the statement made by Edward Lee at verification is inconclusive on this point. In determining that the assignment of the 376.67 percent rate to these two or more transactions was contrary to law, the court does not overlook certain record evidence that supports Commerce’s finding that American Yipin’s payroll records were not in all respects accurate. See infra Section B (addressing the issue of indirect selling expenses). For this reason, Commerce was justified in its reluctance to find, based on the July 31, 2002 payroll record, that Henry Lee began his employment with American Yipin no sooner than July 2002. The issue of when Henry Lee’s employment began is critical to determining whether Commerce acted according to law in invoking its authority under 19 U.S.C. § 1677e in determining an anti-dumping margin for those two or more transactions. Accordingly, the court will allow Commerce, on remand, to reopen the record for the limited purpose of obtaining evidence to determine the start date of Henry Lee’s employment, if it so chooses. Should Commerce conclude based on new record evidence that affiliation existed for sales to Houston Seafood negotiated on or before March 29, 2002, it also must justify as appropriate and not punitive the application of any rate that results from the use of facts otherwise available and adverse inferences. See F.lli De Ceceo Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027,1032 (Fed.Cir.2000). Because Commerce found as a fact, based on record evidence, that Edward Lee sold his interest in Houston Seafood during the period of review and acknowledged record evidence that the sale occurred on March 29, 2002, and because critical findings of fact upon which Commerce invoked its authority under 19 U.S.C. § 1677e are unsupported by substantial evidence, the court in its discretion denies Commerce’s request for a general reopening of the record so that Commerce may conduct additional fact finding on the affiliation issue. B. In Using Facts Otherwise Available and Adverse Inferences to Recalculate Jinan Yipin’s Indirect Selling Expense Factor, Commerce Relied on Findings that Are Not Supported by Substantial Record Evidence Pursuant to 19 U.S.C. § 1677a(d)(l), Commerce must reduce the price used to establish constructed export price by the amount of any of various expenses incurred in selling the subject merchandise in the United States. See 19 U.S.C. § 1677a(d)(l). The expenses to be deducted include sales commissions, “expenses that result from, and bear a direct relationship, to the sale,” selling expenses covered by the seller on behalf of the purchaser, and “any selling expenses” not covered by the other provisions. Id. at § 1677a(d)(l)(A)-(D). In response to Commerce’s questionnaire, Jinan Yipin calculated, as a percentage of American Yipin’s total sales for 2002, an indirect selling expense factor (“ISE factor”) for application to all of American Yipin’s U.S. sales during the period of review, using the total indirect selling expenses that were set forth in American Yipin’s 2002 profit and loss statement and that were not reported elsewhere. See Jinan Yipin’s Br. in Supp. 33; see also FA Mem. at 11. Invoking its authority to use facts otherwise available and adverse inferences, Commerce recalculated Jinan Yipin’s reported ISE factor by adding to American Yipin’s reported total indirect selling expenses all salary and benefits expenses that were incurred in 2002 by another company, Bayou Dock, an importer and distributor of seafood products that was located near American Yipin in Westwego, Louisiana. See Decision Mem. at 87-88. Commerce did so based on its findings that Jinan Yipin withheld information and impeded the review by under-reporting American Yipin’s indirect selling expenses and by failing to disclose certain facts that Commerce learned for the first time at verification, which established that American Yipin and Bayou Dock shared employees and, according to Commerce, also shared salaries, computers, office space, accounting software and records, overhead expenses, and other expenses. Id. In the FA Memorandum, Commerce set forth its findings of fact that Edward Lee was the owner and president of Bayou Dock, that two employees of American Yi-pin, Bonnie Dufrene and Martha Bourge, also were employees of Bayou Dock, that Edward Lee and the other two Bayou Dock employees were paid consistently by Bayou Dock, and that Jinan Yipin’s reported indirect selling expenses did not include salaries for American Yipin’s first three months of operation in Westwego, Louisiana and did not include any general office start-up expenses, such as office supplies, equipment, and overhead. FA Mem. at 11-12. The FA Memorandum also stated that American Yipin officials told Commerce officials at verification that Edward Lee spends ninety percent of his time working for American Yipin, that his current activities for Bayou Dock are minimal, and that “Ms. Dufrene spends 50 to 75 percent of her time working for American Yipin, depending on the workload, and the rest of her time working for Bayou Dock.” Id. at 11. “They explained that Ms. Bourge is a temporary employee and works for either company as needed.” Id. The FA Memorandum also stated that in response to Commerce’s question at verification as to how selling activities were allocated between American Yipin and Bayou Dock, “Edward Lee responded (with agreement by the two other employees, Ms. Dufrene and Ms. Bourge) that there [was] never any overlap of the two companies and that they do not do work for one company while at the other company.” Id. at 12. Citing the Verification Report, the FA Memorandum stated that at verification Edward Lee “explained that American Yipin is a completely separate entity from Bayou Dock and the selling activities and accounting records are kept separately.” Id. Commerce observed at verification, however, that Ms. Bourge, when at Bayou Dock, had the option of opening accounting records for American Yipin on the main screen of the accounting software. Decision Mem. at 87 (quoting FA Mem. at 12). Commerce stated that “we have determined that, by sharing employees, salaries, computers, office space, accounting software and records, overhead expenses, and other expenses, American Yipin and Bayou Dock were managed and operated in a manner that is not consistent with two totally unaffiliated business entities during the period of review.” Id. (quoting FA Mem. at 12). Based on the findings discussed above, Commerce concluded that Jinan Yipin withheld information pertinent to the calculation of Jinan Yipin’s antidumping duty margin when it failed to report as American Yipin’s indirect selling expenses the expenses that were incurred by Bayou Dock and failed to act to the best of its ability in providing the necessary or accurate information on indirect selling expenses when it responded to the Department’s questionnaires. FA Mem. at 12-13. Commerce invoked its authority under 19 U.S.C. § 1677e(a) and (b) in adding, as facts otherwise available and adverse inferences, all of Bayou Dock’s salary and benefits expenses that were incurred in 2002 to American Yipin’s reported total indirect selling expenses. Id.; Decision Mem. at 87-88. Jinan Yipin argues that Commerce’s calculation of its ISE factor is based on factual inaccuracies and is not supported by record evidence. Jinan Yipin’s Br. in Supp. 36. Jinan Yipin contests Commerce’s finding that American Yipin did not incur any salary expense for office staff for three months after opening, citing the Verification Report and exhibits for record evidence that Henry Lee continued to receive salary from American Yipin during September-December 2002 and that Ms. Dufrene and Ms. Bourge received payment from American Yipin in December 2002 and a “sizable payment” in January 2003. Id. at 36-37 (citing Confidential Verification Report Ex. 6-A). Concerning Commerce’s finding that it could not locate a specific expense of American Yipin for office supplies, Jinan Yipin identifies in American Yipin’s reported selling expenses “over $3,000 in a category called ‘office/computer.’ ” Pis.’ Reply to Def.’s Opp’n to Pis.’ Mot. for J. on the Agency Record 10, n. 6 (“Jinan Yipin’s Reply”). Jinan Yipin also takes issue with Commerce’s finding that at verification Edward Lee stated, with the agreement by Ms. Dufrene and Ms. Bourge, that there was never any overlap of the two companies and that the employees do not do work for one company while at the other company. Jinan Yipin’s Br. in Supp. 37. Jinan Yipin directs the court’s attention to “affidavits placed on the record by every American Yipin employee,” stating that Edward Lee “did not make an unequivocal statement that American Yipin employees never do work for American Yipin while at Bayou Dock or vice versa.” Id. Commerce’s determination of Jinan Yi-pin’s ISE factor relies on a finding of fact that Jinan Yipin and Bayou Dock “ ‘shar[ed] employees, salaries, computers, office space, accounting software and records, overhead expenses, and other expenses.’ ” Decision Mem. at 87 (quoting FA Mem. at 12). Commerce referred to “findings that Bayou Dock incurred certain indirect selling expenses on behalf of Jinan Yipin’s sales of fresh garlic in the United States.” FA Mem. at 12. Commerce concluded that Jinan Yipin had failed to include these expenses as indirect selling expenses in its questionnaire response. Id. at 12-13. The court concludes that substantial evidence supports a finding that some indirect selling expenses were under-reported or irregularly reported. However, certain of Commerce’s specific findings on this general issue lack eviden-tiary support in the record. The court discerns a lack of substantial record evidence for Commerce’s finding that American Yipin did not pay any salaries for the first three months after relocating to Louisiana. This finding is inconsistent with the evidence of payments by American Yipin to Henry Lee during September-December 2002. See Jinan Yipin’s Br. in Supp. 36 (citing Confidential Verification Repeni Ex. 6-A). Substantial record evidence does support, however, a finding, or at least a reasonable inference, that not all salary expenses of American Yipin’s selling activities were included in Jinan Yipin’s reported data. Jinan Yipin does not appear to contest the finding of fact that Edward Lee was paid no salary by American Yipin following American Yi-pin’s move to Louisiana, and the record contains no other explanation as to how compensation for Edward Lee’s activities on behalf of American Yipin was reflected in the business records and reported data. This lack of an explanation is all the more significant in light of Commerce’s finding — also uncontested by Jinan Yipin— that Commerce officials were told at verification that Edward Lee spends ninety percent of his time working for American Yipin and that his activities for Bayou Dock are minimal. Although there is record evidence that Ms. Dufrene and Ms. Bourge received payments from American Yipin in December 2002 and substantial payments in January 2003, the apparently deferred payments raise additional, unanswered questions concerning possible irregularities in the reporting of their salary expenses. Jinan Yipin does not appear to dispute that Ms. Dufrene and Ms. Bourge were not paid until December 2002 for work performed for American Yipin following the move of the office to Louisiana the previous September. Commerce’s general finding that American Yipin shared computers, office space, accounting software and records, overhead expenses, and other expenses appears to be overly broad given the specific findings and evidence cited by Commerce. The shared employees were Ms. Dufrene (who is listed in the Verification Report as American Yipin’s “Import and Logistic Manager”) and Ms. Bourge (listed therein as “Bookkeeper”). See Verification Report Attach. I. Concerning shared office space, these employees, according to evidence relied on by both Jinan Yipin and by defendant, sometimes performed functions for one company at the location of the other company. Commerce cites evidence that Ms. Bourge could access American Yipin’s accounting software from a computer located at Bayou Dock, using common software. Decision Mem. at 87 (quoting FA Mem. at 12). Defendant has not directed the court to record evidence of any other shared “ ‘overhead expenses, and other expenses.’ ” See id. (quoting FA Mem. at 12). Based on the record evidence supporting a finding that Jinan Yipin did not properly report all of its indirect selling expenses, the court concludes that Commerce had a reasonable basis upon which to make an upward adjustment in Jinan Yipin’s ISE factor by adding some expenses incurred by Bayou Dock and to do so by invoking the procedures of 19 U.S.C. § 1677e(a) and (b). Based on substantial record evidence, Commerce reasonably concluded that Jinan Yipin did not “act[ ] to the best of its ability” in reporting the required indirect selling expense information. 19 U.S.C. § 1677e(b). The court concludes, however, that the Final Results do not contain a satisfactory explanation of why it was reasonable and appropriate to add all the 2002 salary and benefits expenses of Bayou Dock, a distributor of seafood products, to American Yipin’s reported total indirect selling expenses for the sale of subject garlic, as an application of facts otherwise available and adverse inferences. The evidence as a whole pertaining to the scope of possible expenses incurred by Bayou Dock that properly should have been reported as expenses of American Yipin does not adequately support Commerce’s broad finding that Jinan Yipin and Bayou Dock “ ‘shar[ed] employees, salaries, computers, office space, accounting software and records, overhead expenses, and other expenses.’ ” Decision Mem. at 87 (quoting FA Mem. at 12). The errors in reporting indirect expenses did not pertain to the entire period of review but only to that portion affected by American Yipin’s move to Louisiana in September 2002. On remand, Commerce must reconsider its calculation of American Yipin’s ISE factor based on all record evidence, including specifically the record evidence that refutes some of the findings of fact on which Commerce based that calculation. In selecting from among the facts otherwise available as an adverse inference, Commerce must adhere to its obligation to create the proper deterrent to non-cooperation without doing so in a way that is punitive. See De Ceceo, 216 F.3d at 1032 (Fed. Cir.2000). C. Commerce Did Not Act Contrary to Law in Deducting the Full Amount of Inspection Fees when Calculating Jinan Yipin’s Constru