Slip Op. 26-112
UNITED STATES COURT OF INTERNATIONAL TRADE
KUMAR INDUSTRIES AND BAJAJ
HEALTHCARE LIMITED,
Plaintiffs,
v.
Before: Jennifer Choe-Groves, Judge
UNITED STATES,
Court No. 25-00081
Defendant,
and
DEER PARK GLYCINE, LLC,
Defendant-Intervenor.
OPINION AND ORDER
[Sustaining in part and remanding in part the U.S. Department of Commerce’s final determination in the 2022–23 administrative review of the antidumping duty order of glycine from India.]
Dated: September 14, 2026
Lizbeth R. Levinson, Fox Rothschild LLP, of Washington, D.C., argued for Plaintiffs Kumar Industries and Bajaj Healthcare Limited. Alexander D. Keyser, Fox Rothschild LLP, of Washington, D.C., also appeared.
Samuel J. Harrison, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., appeared for Defendant United States. On the brief were Brett A. Shumate, Assistant Attorney General, Patricia M. McCarthy, Director, and Claudia Burke, Deputy Director. Of counsel on the brief was Samuel O. Agranovich, Attorney, Office of Chief Counsel for Trade Court No. 25-00081 Page 2
Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.
David M. Schwartz, Michelle Meixuan Li, Kerem Bilge, and Aaron C. Mandelbaum, Thompson Hine LLP, of Washington D.C., appeared for DefendantIntervenor Deer Park Glycine, LLC.
Choe-Groves, Judge: This action concerns the U.S. Department of
Commerce’s (“Commerce”) determination in the 2022–23 administrative review of
the antidumping duty order of glycine from India, during the period of June 1,
2022, to May 31, 2023. Glycine from India, 90 Fed. Reg. 15,689 (Dep’t of
Commerce Apr. 15, 2025) (final results of antidumping duty administrative
review; 2022–2023) (“Final Results”) and accompanying Issues and Decision
Memorandum (Dep’t of Commerce Apr. 8, 2025) (“Final IDM”), PR 202; 1 see
also Glycine from India and Japan, 84 Fed. Reg. 29,170 (Dep’t of Commerce June
21, 2019) (amended final affirmative antidumping duty determination and
antidumping duty orders).
Before the Court is the Rule 56.2 motion for judgment on the agency record
filed by Plaintiffs Kumar Industries (“Kumar”) and Bajaj Healthcare Limited
(“Bajaj”) (collectively, “Plaintiffs”). Corrected Pls.’ 56.2 Mot. J. Agency R.
(“Pls.’ Motion”), ECF Nos. 33, 34; see Corrected Mem. Points Authorities Supp.
Pls.’ 56.2 Mot. J. Agency R. (“Pls.’ Br.”), ECF Nos. 33-2, 34-2. The Court held
1
Citations to the administrative record reflect the public record (“PR”) and confidential record (“CR”) numbers filed in this case, ECF Nos. 46, 47. Court No. 25-00081 Page 3
oral argument on July 7, 2026. Appearance Sheet (July 7, 2026), ECF No. 54. For
the reasons discussed below, the Court sustains in part and remands in part
Commerce’s Final Determination.
BACKGROUND
In August 2023, Commerce initiated an administrative review of the
antidumping duty order on glycine from India. See Initiation of Antidumping and
Countervailing Duty Administrative Reviews, 88 Fed. Reg. 51,271 (Dep’t of
Commerce Aug. 3, 2023). Commerce selected Kumar and Avid Organics Private
Limited (“Avid”) as mandatory respondents for individual examination.
Respondent Selection Memorandum (Aug. 24, 2023) at 1, PR 21. Bajaj was
selected as a respondent, but not selected for individual examination. Id. at 6.
Commerce conducted administrative reviews previously of the antidumping order
that involved Kumar as a respondent. See Glycine from India, 86 Fed. Reg. 62,508
(Dep’t of Commerce Nov. 10, 2021) (final results of antidumping duty
administrative review; 2018–2020) (“Final Results AR1”) and accompanying
Issues and Decision Memorandum (Dep’t of Commerce Nov. 4, 2021); Glycine
from India, 87 Fed. Reg. 67,870 (Dep’t of Commerce Nov. 10, 2022) (final results
of antidumping duty administrative review; 2020–2021) (“Final Results AR2”) and
accompanying Issues and Decision Memorandum (Dep’t of Commerce Nov. 4,
2022); Glycine from India, 88 Fed. Reg. 77,552 (Dep’t of Commerce Nov. 13, Court No. 25-00081 Page 4
2023) (final results of antidumping duty administrative review; 2021–2021) (“Final
Results AR3”) and accompanying Issues and Decision Memorandum (Dep’t of
Commerce Nov. 13, 2023).
Commerce sent an initial questionnaire to Kumar on August 24, 2023,
followed by three supplemental questionnaires. Admin. Rev. Antidumping Duty
Order Glycine India: Initial Questionnaire (Aug. 24, 2023) (“Initial
Questionnaire”), PR 19; Fourth (2022-2023) Admin. Rev. Antidumping Duty
Order Glycine India: First Supp. Questionnaire (Sections A-D) (Feb. 26, 2024)
(“First Supp. Questionnaire”), PR 82; Fourth (2022-2023) Admin. Rev.
Antidumping Duty Order Glycine India: Supp. Questionnaire (May 13, 2024)
(“Second Supp. Questionnaire”), PR 143; Admin. Rev. Antidumping Duty Order
Glycine India: Supplemental Questionnaire (June 24, 2024) (“Third Supp.
Questionnaire”), PR 149. On June 27, 2024, Commerce published the preliminary
determination of its investigation and determined that the mandatory respondents
did not make sales of subject merchandise at less than normal value during the
period of review. Decision Memorandum for the Preliminary Results of the
Administrative Review of the Antidumping Duty Order on Glycine from India;
2022–2023 (“PDM”), PR 169 at 1.
Following the PDM, Commerce issued the Final IDM on April 8, 2025, and
published its Final Results on April 15, 2025. Final IDM; Final Results, 90 Fed. Court No. 25-00081 Page 5
Reg. at 15,689. Commerce explained that necessary information regarding
Kumar’s affiliation with other companies was not available on the record, and
determined that Kumar withheld information, failed to provide information at the
requested deadline, and impeded the proceeding by failing to provide the requested
information. Final IDM at 7–9. Commerce determined that an application of facts
otherwise available with an adverse inference (“AFA”) was appropriate. Id. at 7–
12. Commerce assigned Bajaj, as a non-selected respondent, the simple average of
Kumar and Avid’s dumping margins. Final Results, 90 Fed. Reg. at 15,690.
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction under 19 U.S.C. § 1516a(a)(2)(B)(iii), and 28
U.S.C. § 1581(c), which grant the Court authority to review actions contesting the
final results of an administrative review of an antidumping duty order. The Court
shall hold unlawful any determination found to be unsupported by substantial
evidence on the record or otherwise not in accordance with law. 19 U.S.C.
§ 1516a(b)(1)(B)(i).
DISCUSSION
I. Commerce’s Application of Adverse Facts Available
Commerce determined that Kumar failed to provide accurate, complete, and
consistent responses to questions regarding its affiliation with Companies A, B, C, Court No. 25-00081 Page 6
and D, and with the Borad Family.2 Final IDM at 4. Kumar had reported passing
ownership of Companies A and B between themselves and members of the Borad
Family. Id. at 8. For Companies A and B, Kumar admitted affiliation with these
companies after April 1, 2023, but failed to provide information requested to prove
non-affiliation prior to April 1, 2023, and Commerce determined that Kumar had
not sufficiently shown bona fide acquisitions of Companies A and B in 2023. Id.
at 7–8. For Companies C and D, record evidence contradicted Kumar’s claim of
non-affiliation with these companies during the period of review. Id. at 8–9.
Commerce determined that Kumar impeded the proceeding significantly by failing
to provide documents or responsive answers to Commerce’s requests for
information concerning Kumar’s affiliations. Id. at 9. These issues led Commerce
to determine that necessary information was not available on the record and that
Kumar withheld necessary information when requested. Id. at 10. Commerce
determined that this constituted a failure to cooperate to the best of Kumar’s ability
and undermined the validity of Kumar’s submissions in total, causing Commerce
to disregard Kumar’s submissions for purposes of calculating an accurate dumping
margin. Id.
2
Companies A–D are referred to as such in all public documents in the Administrative Record.
Court No. 25-00081 Page 7
A. Legal Standard
Section 776 of the Tariff Act states that if “necessary information is not
available on the record,” then the agency shall “use the facts otherwise available in
reaching” its determination. 19 U.S.C. § 1677e(a)(1). 19 U.S.C. § 1677e(a)(2)
permits Commerce to select from facts otherwise available if an interested
party: (A) withholds information; (B) fails to provide such information by the
deadlines for submission, or in the form and manner requested; (C) significantly
impedes a proceeding; or (D) provides such information but the information cannot
be verified. 19 U.S.C. § 1677e(a)(2).
Commerce’s authority to use facts otherwise available under 19 U.S.C.
§ 1677e(a) is subject to 19 U.S.C. § 1677m(d), which states that:
If the administering authority or the Commission determines that a
response to a request for information under this subtitle does not
comply with the request, the administering authority or the Commission
(as the case may be) 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 investigations or reviews under this subtitle.
19 U.S.C. § 1677m(d).
If Commerce determines that “an interested party has failed to cooperate by
not acting to the best of its ability to comply with a request for information” from
the agency, then Commerce “may use an inference that is adverse to the interests
of that party in selecting from among the facts otherwise available.” Id. Court No. 25-00081 Page 8
§ 1677e(b)(1)(A). The United States Court of Appeals for the Federal Circuit
(“CAFC”) has interpreted these two subsections to have different purposes. See
Mueller Comercial de Mexico, S. de R.L. De C.V. v. United States, 753 F.3d 1227,
1232 (Fed. Cir. 2014). Subsection (a) applies “whether or not any party has failed
to cooperate fully with the agency in its inquiry.” Id. (citing Zhejiang DunAn
Hetian Metal Co. v. United States, 652 F.3d 1333, 1346 (Fed. Cir. 2011)).
Subsection (b) applies only when Commerce makes a separate determination that
the respondent failed to cooperate “by not acting to the best of its ability.” Id.
(quoting Zhejiang DunAn Hetian Metal Co., 652 F.3d at 1346).
When determining whether a respondent has complied to the “best of its
ability,” Commerce “assess[es] whether [a] respondent has put forth its maximum
effort to provide Commerce with full and complete answers to all inquiries in an
investigation.” Nippon Steel v. United States, 337 F.3d 1373, 1382 (Fed. Cir.
2003). This determination requires both an objective and a subjective showing.
Id. Commerce must determine objectively “that a reasonable and responsible
[respondent] would have known that the requested information was required to be
kept and maintained under the applicable statutes, rules, and regulations.” Id.
(citing Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330, 1336
(Fed. Cir. 2002)). Next, Commerce must demonstrate subjectively that the
respondent’s “failure to fully respond is the result of the respondent’s lack of Court No. 25-00081 Page 9
cooperation in either: (a) failing to keep and maintain all required records, or (b)
failing to put forth its maximum efforts to investigate and obtain the requested
information from its records.” Id. at 1382–83. Adverse inferences are not
warranted “merely from a failure to respond,” but rather in instances when
Commerce reasonably expected that “more forthcoming responses should have
been made.” Id. at 1383. “The statutory trigger for Commerce’s consideration of
an adverse inference is simply a failure to cooperate to the best of respondent’s
ability, regardless of motivation or intent.” Id. To use an adverse inference when
selecting among the facts otherwise available under Section 1677e(b), Commerce
must assess whether the party used its maximum efforts to secure the missing
information. Id. at 1382.
B. Commerce’s Use of Facts Otherwise Available for Kumar
Kumar argues that it cooperated in all aspects of the administrative review
and responded in full to the initial and supplemental questionnaires. Pls.’ Br. at 10.
Kumar contends that there is no nexus between whether Kumar is affiliated with
Companies A–D and the calculation of an accurate dumping margin. Id.
Defendant argues that distinguishing transactions with unaffiliated entities from
transactions with affiliated entities is essential for calculating an accurate normal
value of subject merchandise. Def.’s Resp. Pls.’ Mot. J. Agency Rec. (“Def.’s
Resp. Br.”) at 20, ECF Nos. 37, 38. Commerce determined that applying facts Court No. 25-00081 Page 10
otherwise available was warranted pursuant to all bases under 19 U.S.C.
§ 1677e(a), and Defendant argues that Kumar’s repeated failure to resolve
discrepancies when requested supports this determination. Id. at 19–24.
The Court has ruled previously on Commerce’s use of facts otherwise
available in relation to Kumar’s affiliation with Companies A and B in past
administrative reviews. See Kumar Indus. v. United States (“Kumar I”), 47 CIT
__, 665 F. Supp. 3d 1355 (2023); Kumar Indus. v. United States (“Kumar II”), 49
CIT __, 779 F. Supp. 3d 1329 (2025). In this administrative review, Commerce
requested information about Kumar’s affiliations and Kumar stated that its owners
have been partners in Companies A and B since April 1, 2023. See Initial
Questionnaire at Sections A-3–A-6; Submission Section-A Initial Questionnaire
Resp. (October 5, 2023) (“Initial Questionnaire Resp.”), at 5–6, PR 40. Kumar
acknowledged that this was “a change from the prior [periods of review] where
Kumar was not affiliated and did not control such entities.” Initial Questionnaire
Resp. at 5–6. Kumar filed partnership deeds to show its partnership in Companies
A and B beginning in April 2023. See Supp. Joint App’x (June 5, 2026) at Exs. A5(d), A-5(e), PR 19. Kumar explained that it is a company owned by a family, and
that this family has ownership interests in other affiliate companies. Initial
Questionnaire Resp. at 7; id., Ex. A-3 (“List of Affiliates”), CR 10. Kumar listed
Companies C and D as affiliates but claimed that Kumar’s partners had submitted Court No. 25-00081 Page 11
their resignation letters for Companies C and D and that the partners’ names had
yet to be stricken from Companies C and D’s registers due to a dispute between the
two ownership families. See Initial Questionnaire Resp. at 7–8; List of Affiliates.
Kumar claimed that none of the affiliates are engaged in the production or sale of
the subject merchandise. Id. at 7.
Kumar’s evidence had contradictions, and GEO Specialty Chemicals, Inc.
(“GEO”), a domestic glycine producer and participating party in the administrative
review, submitted comments in response to Kumar’s Initial Questionnaire
Response identifying issues with Kumar’s initial responses. See GEO’s Comments
on Kumar’s Section A Questionnaire Resp. (Oct. 26, 2023) (“GEO Comments”)
PR 53, CR 20. GEO identified evidence that showed that Company B has been a
producer of monochloroacetic acid (“MCAA”) and glycine as of May 2021. Id. at
3. GEO claimed that, contrary to Kumar’s claim that all family members resigned
from Company D, documents indicated that a member of Kumar’s family
ownership continued to be active in managing Company D’s operations after the
claimed resignation date. Id. at 10. In response, Commerce issued a first
supplemental questionnaire on February 26, 2024, that identified contradictory
affiliation information submitted by Kumar and requested explanations regarding
Kumar’s relationship with Companies A–D. First Supp. Questionnaire (Feb. 26,
2024) at 1–17.
Court No. 25-00081 Page 12
Commerce issued a second supplemental questionnaire on May 13, 2024,
and asked for further explanation as to why Kumar’s owner signed an
environmental clearance application in May 2020 for Company C as a “partner.”
Second Supp. Questionnaire at 7–8. Kumar’s response included the following:
“Kumar reports that it had already explained and submitted the same in the 1st
Supplemental Questionnaire Response in Admin Review 2 to the Department of
Commerce, which is re-iterated as under . . . ”. Submission of Section A, B, and D
Second Supp. Questionnaire Resp. (May 28, 2024) (“Second Supp. Questionnaire
Resp.”) at 7–8, PR 147. When asked to explain Kumar’s owner’s motivation for
signing the environmental clearance application as a “partner,” Kumar explained
that the owner’s motivation “[stemmed] from his deep sense of responsibility,
commitment to the company’s compliance and success, and his ongoing influence
and dedication even after retirement.” Id. at 9.
Commerce asked Kumar to explain why records submitted showed that the
principal place of business for Company B is the same address as Kumar’s
affiliates’ principal place of business. Id. at 15, 17 (“Fully explain the specific
proximate reason why [Company B]’s ‘Principal Place of Business,’ is the address
used by various Kumar affiliates.”). Kumar’s response was as follows: “Kumar
had duly explained this in 1st SQR.” Id. Commerce requested full explanation as
to what Company B and the other affiliates that share the same principal place of Court No. 25-00081 Page 13
business have in common apart from sharing the same principal place of business.
Id. Kumar’s response was as follows: “Kumar had duly explained this in 1st
SQR.” Id. at 18.
Commerce issued three supplemental questionnaires in total, identifying
contradictions in the record regarding Kumar’s affiliations with Companies A–D.
See First Supp. Questionnaire; Second Supp. Questionnaire; Third Supp.
Questionnaire. Commerce continued to seek an explanation on the plausibility of
Kumar’s partner retirement deeds for Companies A and B featuring the exact date
or day after the partner’s death. See Second Supp. Questionnaire at 8–9.
Commerce also raised uncertainty about Kumar’s explanation that Companies A
and B were re-acquired in April 2023 for no renumeration or compensation. See
Id. at 6, 9, 15–16.
Plaintiffs argue that Commerce’s determination that necessary information
was missing from the record was incorrect because Commerce cannot identify a
single necessary document that Kumar failed to provide. Pls.’ Br. at 13–14.
Commerce’s supplemental questionnaires repeatedly asked for clarification or
explanation of contradictions present in the documents that Kumar submitted
related to its affiliations. The burden of production belongs to the party in
possession of the necessary information and the burden of creating an adequate
record lies with respondents, not Commerce. NTN Bearing Corp. of Am. v. Court No. 25-00081 Page 14
United States, 997 F.2d 1453, 1458–59 (Fed. Cir. 1993) (citations omitted).
Kumar claimed that it became affiliated with Companies A and B as of April 1,
2023, but submitted information that contradicted that claim. Commerce
determined that Kumar did not reasonably explain why a retirement deed claiming
divestitures from Company A was dated on the exact date of the death of one
Kumar partner and a retirement deed from Company B was dated after the death of
the same partner. Final IDM at 7–8. Kumar’s own submissions showed
involvement in Companies A and B by Kumar’s partner after the alleged
divestiture in 2012 and before the alleged date of re-affiliation in April 2023. Final
Application of Adverse Facts Available to Kumar (Apr. 8. 2025) (“AFA Memo”)
at 3, PR 205, CR 172. Additionally, Commerce determined that Kumar’s claim
that no renumeration or compensation had been agreed to or provided in reacquiring Companies A and B was suspect. Id. at 4–5.
In the AFA Memo, Commerce identified that Kumar claimed to have
divested interest in Companies C and D, but Kumar’s questionnaire responses were
non-responsive to Commerce’s questions regarding this claimed non-affiliation in
light of contradictory record evidence, such as the environmental application.
AFA Memo at 5; see Second Supp. Questionnaire Resp. at 8–9. Commerce noted
that Kumar also failed to explain sufficiently why Company B shared an address
with several of Kumar’s affiliates in 2020, before the re-acquisition in April 2023. Court No. 25-00081 Page 15
AFA Memo at 3. Commerce identified contradictory evidence on the record and
Kumar was non-responsive when presented with the opportunity to provide
explanations. See Second Supp. Questionnaire Resp. at 17, 18, 22, 24.
Many evidentiary contradictions involved Kumar’s non-affiliation with
Companies A and B before April 1, 2023, and Kumar’s non-affiliation with
Companies C and D. It is Kumar’s burden to create an adequate record, and
Commerce’s determination was reasonable that Kumar created a contradictory
record that was unreliable. The inconsistencies in Kumar’s responses regarding
Companies A and B must be considered in relation to the other inconsistencies
related to Companies C and D. Commerce decided that Kumar’s nonresponsiveness to Commerce’s questions supported a determination that the
administrative record lacked necessary information concerning whether Kumar
was affiliated with Companies A, B, C, and D and any Borad Family affiliates
during the period of review. Final IDM at 9.
“An affiliation of a foreign exporter or producer with its home market
customers or its input suppliers affects significantly the Department’s method of
calculating normal value, and therefore, the dumping margin.” Kumar I, 47 CIT at
__, 665 F. Supp. 3d at 1360. Kumar claimed that it was not affiliated with
Companies C and D, but record evidence indicated involvement in both companies
by Kumar’s partners. AFA Memo at 3–6. When provided the chance to explain Court No. 25-00081 Page 16
such contradictions, Commerce determined that Kumar was non-responsive,
referred to responses provided in previous administrative reviews, or indicated that
Kumar had already answered the question in a previous questionnaire response.
Necessary information regarding Kumar’s affiliations to adequately calculate a
dumping margin was missing from the record. See id. The Court concludes that
Commerce’s determination that necessary information was missing from the record
and that Kumar withheld information, which significantly impeded Commerce’s
review, is supported by substantial evidence and otherwise in accordance with law.
1. Notice and Opportunity to Remedy or Explain a Deficiency
Commerce’s authority under 19 U.S.C. § 1677e(a) to use facts otherwise
available is subject to a statutory obligation under 19 U.S.C. § 1677m(d) that
requires Commerce to notify a respondent promptly of the nature of a deficiency in
the record and to provide the respondent with an opportunity to remedy or explain
the deficiency. 19 U.S.C. § 1677e(a); 19 U.S.C. § 1677m(d). Although Kumar
argues that Commerce faulted Kumar for failing to explain discrepancies that were
never brought to Kumar’s attention, Commerce notified Kumar of the issue of
contradictions regarding Kumar’s affiliations on numerous occasions. Pls.’ Br. at
21; Def.’s Resp. Br. at 20–21. Commerce issued three supplemental
questionnaires identifying which questions Kumar was not sufficiently responding
to and gave Kumar many chances to rectify or explain the issues. See Supp. Court No. 25-00081 Page 17
Questionnaire; Second Supp. Questionnaire; Third Supp. Questionnaire. The
Court concludes that Commerce satisfied its statutory obligation to provide Kumar
with notice of deficiencies and an opportunity to remedy or explain such
deficiencies prior to resorting to facts otherwise available. The Court concludes
that Commerce’s use of facts otherwise available is supported by substantial
evidence and otherwise in accordance with law.
C. Application of an Adverse Inference
Commerce determined that Kumar’s failure to cooperate to the best of its
ability to comply with Commerce’s requests for information undermined the
validity of the company’s submissions entirely, such that Commerce was unable to
rely on Kumar’s submissions for purposes of calculating an accurate weightedaverage dumping margin. Final IDM at 12. This justified the application of an
adverse inference in selecting from the facts otherwise available according to
Commerce. Id. The “best of its ability” standard involves assessing whether a
respondent put forth maximum effort in providing Commerce with “full and
complete answers to all inquiries in an investigation.” Nippon Steel, 337 F.3d at
1382. Commerce requested information about Kumar’s affiliations and
explanations for contradictory record evidence multiple times. Several of Kumar’s
answers were non-responsive. See Second Supp. Questionnaire Resp. at 8, 17–18
(“Kumar had duly explained this in 1st [Supplemental Questionnaire Response]”). Court No. 25-00081 Page 18
Commerce reasonably determined that “Kumar’s failure to cooperate to the best of
its ability to comply with [Commerce’s] requests for information [] undermined the
validity of the company’s submissions overall, such that [Commerce was] unable
to rely on those submissions for purposes of calculating an accurate weightedaverage dumping margin.” Final IDM at 5, 10, 12; see Nippon Steel Corp., 337
F.3d at 1382. Given the extent of non-responsive answers to Commerce’s
questionnaires, it was reasonable for Commerce to determine that the record lacked
necessary information to conduct an accurate dumping calculation. The Court
concludes that Commerce’s decision to apply an adverse inference is supported by
substantial evidence and in accordance with law.
II. Commerce’s Selection of Bajaj’s Rate
Bajaj, a non-selected respondent, challenges the all-others rate that
Commerce assigned to Bajaj as being not supported by substantial evidence or
otherwise in accordance with law. Pls.’ Br. at 21. Bajaj argues that Commerce’s
all-others rate did not reasonably reflect the potential dumping margins of the nonselected companies and was unfair to apply to Bajaj, who had no control over
Kumar’s issues. Id. at 22–23. Commerce is authorized by statute to calculate and
impose a dumping margin on imported subject merchandise after determining that
it is sold in the United States at less than fair value. 19 U.S.C. § 1673. Commerce
determines an estimated weighted average dumping margin for each individually Court No. 25-00081 Page 19
examined exporter and producer and an all-others rate for non-examined
companies. 19 U.S.C. § 1673d(c)(1)(B). The general statutory rule for calculating
the all-others rate is to average the estimated weighted average dumping margins
established for exporters and producers individually investigated, excluding any
zero and de minimis margins, and any margins determined entirely on the basis of
facts available, including adverse facts available. Id. at § 1673d(c)(5)(A). If the
estimated weighted average dumping margins established for all exporters and
producers individually investigated are zero or de minimis, or are determined
entirely under 19 U.S.C. § 1677e, Commerce may invoke an exception to the
general rule. Id. at § 1673d(c)(5)(B).
The Statement of Administrative Action provides guidance that when the
dumping margins for all individually examined respondents are determined
entirely on the basis of the facts available, or are zero or de minimis, the “expected
method” of determining the all-others rate is to weight-average the margins
determined pursuant to the facts available and the zero and de minimis margins,
provided that volume data is available. Uruguay Round Agreements Act,
Statement of Administrative Action (“SAA”), H.R. Doc. No. 103-316, vol. 1, at
873 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4201. Commerce may depart
from the “expected method” and use “any reasonable method” if Commerce
reasonably concludes that the expected method is not feasible or results in an Court No. 25-00081 Page 20
average that would not be reasonably reflective of potential dumping margins for
non-investigated exporters or producers. See 19 U.S.C. § 1673d(c)(5)(B); Navneet
Publ’ns (India) Ltd. v. United States, 38 CIT __, __, 999 F. Supp. 2d 1354, 1358
(2014) (“[T]he following hierarchy [is applied] when calculating all-others rates—
(1) the ‘[g]eneral rule’ set forth in [19 U.S.C.] § 1673d(c)(5)(A), (2) the alternative
‘expected method’ under [19 U.S.C.] § 1673d(c)(5)(B), and (3) any other
reasonable method when the ‘expected method’ is not feasible or does not
reasonably reflect potential dumping margins.”); see also SAA at 873, reprinted in
1994 U.S.C.C.A.N. at 4201; Albemarle Corp. & Subsidiaries v. United States
(“Albemarle Corp.”), 821 F.3d 1345, 1351–52 (Fed. Cir. 2016) (quoting SAA at
873, reprinted in 1994 U.S.C.C.A.N. at 4201). Commerce must determine that the
expected method is not feasible or would not be reasonably reflective of the
potential dumping margins for non-investigated exporters or producers based on
substantial evidence. Albemarle Corp., 821 F.3d at 1352–53; see also Changzhou
Hawd Flooring Co. v. United States, 848 F.3d 1006, 1012 (Fed. Cir. 2017). The
exception in 19 U.S.C. § 1673d(c)(5)(B) applies expressly to market economy
proceedings but has been extended to non-market economy proceedings as well.
Albemarle Corp., 821 F.3d at 1352 n.6; see also Yangzhou Bestpak Gifts & Crafts
Co. v. United States (“Bestpak”), 716 F.3d 1370, 1374 (Fed. Cir. 2013). Any
reasonable method may include averaging the estimated weighted average Court No. 25-00081 Page 21
dumping margins determined for the exporters and producers individually
investigated. 19 U.S.C. § 1673d(c)(5)(B).
While Commerce is permitted to use various methodologies, “it is possible
for the application of a particular methodology to be unreasonable in a given case.”
Bestpak, 716 F.3d at 1378 (quoting Thai Pineapple Canning Indus. Corp. v. United
States, 273 F.3d 1077, 1085 (Fed. Cir. 2001)). All-others rate calculations for nonmandatory, cooperating respondents must bear some relationship to the
respondents’ actual dumping margins. See generally id. at 1379–80; see also F.lli
De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032
(Fed. Cir. 2000) (“[T]he purpose of [19 U.S.C.] § 1677e(b) is to provide
respondents with an incentive to cooperate, not to impose punitive, aberrational, or
uncorroborated margins.”). A dumping margin cannot be upheld based on weak
record evidence. See Bosun Tools Co., Ltd. v. United States (“Bosun Tools”), No.
2021-1930, 2022 WL 94172, at *4 (Fed. Cir. 2022) (comparing Bestpak, where
“the record was ‘so thin’ that Commerce could not have reasonably ‘found
evidence to support [its] determination’” to Bosun Tools where, “in contrast, there
was no such lack of data”).
Bajaj argues that Commerce’s choice to assign Bajaj an antidumping rate
equal to the simple average of the rates obtained by the two mandatory respondents
resulted in a high rate of 28.59% and that Bajaj did not have the opportunity to Court No. 25-00081 Page 22
contest because the preliminary determination assigned rates of zero percent. Pls.’
Br. at 22. Bajaj claims that the rate was unfair and that the Court should instruct
Commerce to adopt the all-others rate of 5.29% that was calculated in a previous
administrative review. Id. at 23; see Final Results AR3, 88 Fed. Reg. at 77,552.
Defendant argues that the calculated all-others rate of a simple average of Avid’s
zero percent rate and Kumar’s AFA rate was a reasonable deviation from the
expected method given that Commerce determined that Kumar’s submissions and
databases were unreliable. Def.’s Resp. Br. at 34–35; see PrimeSource Bldg.
Prods., Inc. v. United States (“PrimeSource”), 111 F.4th 1320 (Fed. Cir. 2024).
Although Defendant claims that Plaintiffs waived any argument that Commerce
did not meet its burden to deviate from the expected method pursuant to
PrimeSource, by not explicitly citing PrimeSource and only making bare
assertions, see Def.’s Resp. Br. at 35–36, the Court concludes that Plaintiffs’ brief
sufficiently put Defendant on notice that Plaintiffs are challenging Commerce’s
calculation method for the all-others rate and thus the argument is not waived.
The presumption that mandatory respondents are representative of the nonselected respondents is essential to the justification for calculating the all-others
rate based upon the weighted average of the mandatory respondents. See
PrimeSource, 111 F.4th at 1331. Bajaj claims that the simple average and
inclusion of an AFA rate in the alternative methodology rendered a dumping rate Court No. 25-00081 Page 23
that was distortive and punitive. Pls.’ Reply Br. at 10, ECF Nos. 44, 45. Given
that Commerce sought “to deviate from the expected method, Commerce must
affirmatively determine, based on substantial evidence, that the expected method is
not feasible or would not be reasonably reflective of the potential dumping margin
of the non-selected respondents.” PrimeSource at 1330 (quoting Changzhou Hawd
Flooring Co., 848 F.3d at 1012 (Fed. Cir. 2017)).
Commerce used a simple average of the dumping margins for the mandatory
respondents rather than a weighted average. See Final Results, 90 Fed Reg. at
15,689. Bajaj states that Commerce’s all-others rate calculation of 28.59% after
applying AFA to Kumar does not reflect the commercial reality or accurately
estimate Bajaj’s dumping margin. Pls.’ Reply Br. at 11. Commerce must
determine, based on substantial evidence, whether the expected method is
infeasible or would not reasonably reflect the potential dumping margin of nonselected respondents, such as Bajaj. See PrimeSource, 111 F.4th at 1330.
Defendant attempts to argue post-hoc that deviating from the expected
method by using a simple average of the mandatory respondents’ dumping margins
was a reasonable determination of Commerce that was supported by substantial
evidence, but Commerce failed to explain in either the Final IDM or the AFA
Memo why the deviation was reasonable. See Final IDM at 2; AFA Memo.
Commerce’s departure from the expected method must be accompanied by a Court No. 25-00081 Page 24
reasonable conclusion that “the expected method [was] ‘not feasible’ or ‘would not
be reasonably reflective of potential dumping margins.” See PrimeSource, 111
F.4th at 1330. The Final IDM states that “the dumping margin assigned to Kumar
and to the non-selected respondents has changed for these final results,” based
upon the application of total AFA to Kumar. Final IDM at 2. However,
Commerce provided no discussion to show why it reasonably concluded that the
expected method was not feasible and would not be reasonably reflective of
potential dumping margins. The Court concludes that Commerce’s calculation of
the all-others rate is neither supported by substantial evidence nor in accordance
with law. The Court remands for Commerce to provide further explanation of its
determination to deviate from the expected method in accordance with this
Opinion.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Commerce’s determination to apply total adverse facts
available is sustained; and it is further
ORDERED that Commerce’s determination to deviate from the expected
method in calculating the all-others rate is remanded for further explanation in
accordance with this Opinion; and it is further
Court No. 25-00081 Page 25
ORDERED that Commerce shall file the Remand Redetermination on or
before November 13, 2026; and it is further
ORDERED that Commerce shall file the Administrative Record for the
Remand Redetermination on or before November 20, 2026; and it is further
ORDERED that the Parties shall file Comments in Opposition to the
Remand Redetermination on or before December 14, 2026; and it is further
ORDERED that the Parties shall file Comments in Support of the Remand
Redetermination on or before January 13, 2027; and it is further
ORDERED that a Joint Appendix shall be filed on or before January 20,
2027.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: September 14, 2026
New York, New York