67 FR 19546, April 22, 2002 A-570-848 POR: 9/1/99-8/31/00 Public Document IA/III/VII: MER MEMORANDUM TO: Faryar Shirzad Assistant Secretary for Import Administration FROM: Joseph A. Spetrini Deputy Assistant Secretary for Import Administration, Group III SUBJECT: Issues and Decision Memorandum for the Final Results of the Antidumping Duty Administrative Review and Final Partial Rescission of Antidumping Duty Administrative Review of Freshwater Crawfish Tail Meat from the People's Republic of China: September 1, 1999 through Agust 31, 2000. SUMMARY: We have analyzed the case and rebuttal briefs of interested parties in response to Freshwater Crawfish Tail Meat from the People's Republic of China: Notice of Preliminary Results of Antidumping Duty Administrative Review and Preliminary Partial Rescission of Antidumping Duty Administrative Review 66 FR 52100 (October 12, 2001) (Preliminary Results). As a result of our analysis, we have made changes from the Preliminary Results. The specific calculation changes can be found in the final analysis memorandum for each company in this review. We recommend that you approve the positions we have developed in the "Discussion of the Issues" section of this Issues and Decision Memorandum. Below is the complete list of the issues in this administrative review: Issues: 1. Use of Australia Bureau of Agriculture and Resource Economics (ABARE) Statistics or Mulataga Information to Value Live Crawfish 2. Whether the Spanish Study is a Reliable Source of Live Crawfish Prices and Represents the Best Available Information 3. Size and Weight of Live Spanish Crawfish 4. Whether Crawfish Capture in Spain Is Performed with Unbaited Nets 5. Whether Spanish Crawfish Prices Are Aberrational 6. Similarity of Spanish GDP to That of China 7. The Spain Trip Versus the Australia and Mexico Trips 8. Use of Mexican Data as a Surrogate Value for Whole, Live Crawfish 9. Comparability of Economies 10. Suggested Wet-Dry Weight Conversion Factor for Crawfish Scrap, Based on Information from an Indian Chitosan Producer 11. The Appropriate Factor for Use in Calculating a Wet-Dry Conversion Factor 12. Suggested Wet-Dry Weight Conversion Ratio of 50 Percent for Crawfish Scrap 13. Incorporation of a Wet-Dry Weight Conversion Factor for Scrap for Yangzhou Lakebest (Lakebest) 14. Suqian's Wet-Dry Conversion 15. Suqian's and Yancheng Haiteng's Coal Freight Expense 16. Rescission of Review for Yancheng Foreign Trade, Ltd. (YFT) 17. The Department's Refusal to Review Certain Sales of Huaiyin Foreign Trade Corporation (30) (Huaiyin 30) 18. Whether the Department Improperly Determined that Fujian Pelagic and Pacific Coast are not Affiliated Parties 19. Whether the Department Improperly Applied Facts Available to Yancheng Yaou 20. Single Rate for Huaiyin 5 and Ningbo Nanlian 21. Yancheng Haiteng's Indirect Selling Expenses Ratio 22. Yancheng Haiteng's Marine Insurance Factor 23. Certain Domestic Parties' Status as Interested Parties 24. Application of the Continued Dumping and Subsidy Offset Act of 2000 (Byrd Amendment) Discussion of the Issues Surrogate Value Information- Introduction In the original investigation, and in certain previous reviews of this order, the Department of Commerce (the Department) used data on imports into Spain from Portugal to value the whole, live, freshwater crawfish input into crawfish tail meat. See e.g., Notice of Final Determination of Sales at Less Than Fair Value: Freshwater Crawfish Tail Meat from the People's Republic of China, 62 FR 41347, 41355 (August 1, 1997) (LTFV Final). However, because of a significant decline in the quantity of Spanish imports, for the preliminary results of a subsequent new shipper review the Department used data on Spanish exports to the European Union (EU), as these exports were made in significant quantities. See Freshwater Crawfish Tail Meat from the People's Republic of China; Notice of Preliminary Results of Antidumping Duty Administrative Review and New Shipper Reviews, and Final Partial Rescission of Antidumping Duty Administrative Review, 65 FR 60399 (October 11, 2000). Both petitioner and respondents argued against the Department's use of this data because evidence on the record of that new shipper review showed that the Spanish exports to the EU included exports of items other than live freshwater crawfish. Id. For the 1998-1999 reviews (see Freshwater Crawfish Tail Meat from the People's Republic of China; Notice of Final Results of Antidumping Duty Administrative Review and New Shipper Reviews, and Final Partial Rescission of Antidumping Duty Administrative Review, 66 FR 20634 (April 24, 2001) (Final Results ADR & NSR (9/98-8/99), and accompanying Decision Memorandum at Comment 1), the Department again used data on imports from Portugal to Spain to value live crawfish, as it was the best available information on the record. However, the Department stated its intention to search for new sources of surrogate data for the valuation of the whole, live freshwater crawfish input in ongoing and future reviews because there was no longer a significant level of imports into Spain from Portugal for whole, live freshwater crawfish. Thus, for purposes of the September 1999 to March 2000 new shipper review, the September 1999 to September 2000 new shipper review, and the current administrative review, we searched for data reflecting a more substantial volume of sales. See Freshwater Crawfish Tail Meat From the People's Republic of China; Notice of Final Results of Antidumping Duty New Shipper Reviews, 66 FR 45002 (August 27, 2001) (Final Results NSR (9/99-3/00)), and accompanying Decision Memorandum at Comment 1. On April 30, 2001, petitioner submitted onto the record of this review publicly available surrogate value information from Australia, and respondents submitted publicly available surrogate value information from Mexico. On May 10, 2001, both petitioner and respondents offered conflicting arguments (discussed in greater detail below) concerning the appropriateness and usability of surrogate value information from Australia and Mexico. In response to information and arguments supplied by respondents and petitioner that crawfish sales in Australia or Mexico could provide a more appropriate surrogate value for whole, live crawfish than what the Department had used in prior reviews, the Department took the additional step of sending teams of analysts to both of those countries to discuss the information submitted with government and industry officials. The Department ultimately utilized surrogate value information from Australia. Id. Surrogate country selection for this administrative review is discussed in the "Memorandum from the Office of Policy to Maureen Flannery, Program Manager, Group III/Office 7 of AD/CVD Enforcement," dated March 5, 2001. Based on information obtained in prior segments of this proceeding, we have determined that none of the countries named in the memorandum are significant producers of crawfish tail meat, nor do they provide a surrogate value for the whole, live crawfish input. Consistent with the most recent new shipper reviews under this order, for the preliminary results of this administrative review, we used Australia as a surrogate country for the valuation of the crawfish input because we have found that Australia is a significant producer of whole freshwater crawfish, and it provides an appropriate surrogate value for the crawfish input. See Preliminary Results; see also Final Results NSR (9/99-3/00); see also Freshwater Crawfish Tail Meat From the People's Republic of China; Notice of Final Results of Antidumping Duty New Shipper Reviews, 66 FR 45002 (August 27, 2001) (Final Results NSR (9/99-9/00)); see also "Freshwater Crawfish Tail Meat from the People's Republic of China (PRC): Meetings Regarding the Crawfish Industry in Western Australia," dated July 31, 2001 ("Australia Memo"). On October 29, 2001, a study of the Spanish freshwater crawfish industry ("the Spanish Study")-titled "Estudio Sobre el Impacto Economico del Sector de Cangrejo de Rio en Andalucia," and printed by the Junta de Andalucia, Consejeria de Agricultura y Pesca (Government of Andalucia, Department of Agriculture and Fisheries)-was submitted to the Department by respondents Ningbo Nanlian Frozen Foods Company, Ltd., and Louisiana Packing (collectively, NN/LP). The Spanish Study is a general study of the crawfish industry in Andalucia, Spain, covering calendar years 1999 and 2000. NN/LP requested that the Department consider live crawfish prices referenced in the Spanish Study to value the whole, live crawfish input used in the production of crawfish tail meat in the PRC for purposes of the final results of this administrative review. Subsequently, petitioner provided the Department with timely factual information contradicting certain information within the Spanish Study, and bringing into question the Spanish Study's validity and reliability as a whole. See proprietary Crawfish Processors Alliance and the Louisiana Department of Agriculture & Forestry ("CPA/LDA&F") Letter, dated November 13, 2001. As discussed in greater detail below, in the current review, petitioner and respondents submitted timely factual information and arguments concerning the appropriateness and usability of surrogate value information from Spain. Due to the type of information submitted, and the conflicting information submitted by respondents and petitioner, the Department could not determine, without further examination, the usability of the value information contained in the publicly available information (PAI) submitted by respondents. Therefore, as was done for Australia and Mexico, the Department sent a team of analysts to Spain during the week of February 25, 2002, to examine whether the price information for whole, live crawfish in the Spanish Study was usable. See the several reports titled "Freshwater Crawfish Tail Meat from The People's Republic of China- Meetings Regarding the Crawfish Industry in Spain," dated March 12, 2002 ("Spain Trip Reports"), each addressing separate meetings with parties involved with or affected by the Spanish Study. For purposes of these final results, we have found the Australian PAI to be the best available information for valuing the whole, live crawfish input. Comment 1: Use of Australia Bureau of Agriculture and Resource Economics (ABARE) Statistics or Mulataga Information to Value Live Crawfish Petitioner argues that the Department should use statistics issued by ABARE to value the whole, live crawfish input. According to petitioner, the ABARE statistics, which cover 245-306 metric tons annually, are collected for the express purpose of developing meaningful production quantity and value data for the products at issue. They are collected and published by a government agency whose mission, methods, and competence are, in petitioner's opinion, clearly established by uncontroverted evidence on the record. See Petitioner's PAI Exhibits 1 and 3 (May 25, 2001). Furthermore, petitioner asserts, ABARE has special expertise in researching and reporting on agricultural, fisheries, and forestry commodities. Id. Petitioner argues that no other source of crawfish pricing data on the record of this review has been collected with the same rigor or by a more qualified source. And unlike the Mulataga Aquaculture (Mulataga) price list used by the Department in the Preliminary Results, and other ad hoc sources proposed by respondents, petitioner contends, ABARE statistics are also regularly updated. See Petitioner's PAI Exh. 1 (May 25, 2001). Petitioner further argues that it is appropriate to use ABARE statistics for yabbies (a species of freshwater crawfish found in Australia) to calculate the whole, live crawfish surrogate value for this proceeding. However, if the Department does not use the ABARE statistics, petitioner states that the Department should use the prices of Australian crawfish processor Mulataga for live crawfish up to 70 grams, and should not limit itself to the use of prices for live crawfish under 40 grams. Petitioner argues that crawfish up to 70 grams are used for tail meat production in China, and that, therefore, if the Department's calculations include prices for live crawfish ranging up to 70 grams, then the appropriate surrogate value would be $4.67 Australian Dollars per kilogram. Petitioner also argues that the surrogate value should not be limited to prices for "seconds" ("aesthetically imperfect" crawfish) because there is no evidence on the record that Chinese processors only use "aesthetically imperfect" crawfish to produce tail meat. According to petitioner, Australian processors use crawfish of all sizes and grades to produce tail meat. Petitioner notes that it has submitted publicly available information demonstrating that Chinese processors routinely sell tail meat sized at under 80 tails per pound, including counts as low as 60 tails per pound. See Petitioner's PAI Exhibits 30-31 (November 1, 2001). Petitioner states that per pound tail counts also frequently appear in respondents' invoices and other sales documentation. According to petitioner, where the number of tails per pound is known, the live weight of the whole, live crawfish input can be determined by dividing the weight of each crawfish tail piece by the appropriate tail meat yield. However, petitioner states that the respondents' reported average processing yields are not appropriate for use in this calculation, as the processing yield for large p. clarkii is significantly lower than the average yield of 15-20 percent encompassing all sizes (i.e., the processing yield for large p. clarkii is 10 percent or less). Petitioner asserts that, according to its calculations, the whole, live crawfish that the Chinese use to produce tail meat range in size from 60 to 110 pieces per pound, and have whole, live weights of 41 to 76 grams, even if one assumes that the yield rate never drops below 10 percent. As noted above, petitioner argues that Chinese processors regularly produce tail meat from crawfish with whole, live weights of 40 to in excess of 70 grams, and that Australian processors use crawfish of all sizes and grades to produce tail meat. Thus, according to petitioner, because Australian and Chinese crawfish are "comparable merchandise" and the size ranges used in the two countries overlap almost entirely, the ABARE statistics should no longer be rejected for use by the Department on the basis stated in the Preliminary Results. However, according to petitioner, unit values derived from the ABARE statistics should be adjusted downward to account for charges paid in Australia to depot operators for functions that Chinese processors perform themselves. According to petitioner, there are no published nationwide figures for depot charges, but an adjustment could be made based on the charges paid by Mulataga. Department's Position: For these final results, pursuant to section 773(c) of the Act, consistent with the Final Results NSR (9/99- 3/00), and Final Results NSR (9/99-9/00), and for the reasons listed below, we have valued whole, live crawfish by using the best PAI on the record of this proceeding, which we determined to be the price for Australian yabbies 30-40 grams in weight, and including only the price paid to the farmers and catchers. See Final Results NSR (9/99-9/00) and accompanying Decision Memorandum at Comment 1. We find that the price for 30-40 gram Australian yabbies is an appropriate surrogate value for valuing Chinese crawfish for the following reasons. First, we have determined that 30-40 gram Australian yabbies are comparable to Chinese crawfish. These smaller yabbies are comparable to Chinese crawfish in size. Second, during our examination of the crawfish industry in Australia, the Department was informed by private commercial sources that freshwater tail meat is produced from yabbies weighing 40 grams or less and larger seconds. Final Results NSR (9/99-9/00) and accompanying Decision Memorandum at Comment 1. Third, the prices paid by Australian processors (to the farmers and catchers) are at the same point of production/distribution as the sales of whole, live crawfish to PRC processors. We disagree with petitioner that the surrogate value for live crawfish should reflect Australian yabby prices paid for all sizes. As with any product, the sales value of crawfish to the processor or any other consumer would likely vary according to the quality and demand for the particular variety of crawfish. See Final Results ADR & NSR (9/98-8/99), and accompanying Decision Memorandum at Comment 1. Australian yabbies are priced by weight and quality. Id. The general size ranges for export quality and domestic quality are 30-40 grams, 41-50 grams, 51-70 grams, 71- 90 grams, and 91+ grams, with the larger sizes fetching higher prices. Id. The general size ranges for seconds (yabbies less than 40 grams or yabbies larger than 40 grams with deformities) are 30-40, 40-70, 71-90, and 91+. Id. Only smaller yabbies (40 grams or less), yabbies with physical deformities, or surplus yabbies are processed into tail meat. Id. In addition, the lower weight ranges of yabbies (40 grams or less) are comparable in size to the freshwater crawfish grown in China. Id. We agree with petitioner that the Department has previously found that the live crawfish surrogate value must represent all sizes of crawfish, not just the smaller crawfish, which are the ones normally processed into tail meat. See LTFV Final, 62 FR at 41354. However, this decision was made when the surrogate value was based on the same species of crawfish found in China-procambarus clarkii (p. clarkii). Because Australian crawfish are of a different species, it is appropriate to evaluate the comparability (e.g., the sizes of whole, live Australian crawfish utilized in the production of tail meat) of this species to p. clarkii. Again, only smaller yabbies (40 grams or less), yabbies with physical deformities, or surplus yabbies are processed into tail meat. As noted in the Final Results NSR (9/99-3/00), and accompanying Decision Memorandum at Comment 1, while we would prefer to use published statistics for the valuation of the input, the clear demarcation in sizes between Australian and Chinese freshwater crawfish processed into tail meat, as well as the fact that only the small, seconds or surplus yabbies go into tail meat production in Australia, leads us to conclude that using the total value and volume inclusive of all sizes, as issued by ABARE, is not appropriate in this case, and the best publicly available information on the record is the price for smaller size yabbies, which we have verified. Although respondents did not directly comment on size with respect to the issue of whether or not it is appropriate to use prices for yabbies with a whole, live size of over 40 grams per piece, they do address size in Comment 3, below. Comment 2: Whether the Spanish Study is a Reliable Source of Live Crawfish Prices and Represents the Best Available Information Petitioner argues that the suitability of Spain as a source of surrogate values is a moot point unless there is a reliable source of Spanish crawfish prices on the record. According to petitioner, the Spanish Study cannot be used for this purpose because there is no substantial evidence on the record of this review to demonstrate that unit prices calculated from the Spanish Study would reliably depict actual live crawfish prices in Spain. Petitioner argues that the record demonstrates that the Spanish Study is inaccurate and unreliable. First, petitioner argues, there is no evidence that the Spanish Study is based on actual sales or purchase data. Second, petitioner argues, the Spanish Study is inaccurate in that it overstates tail meat production in Spain by a factor of at least two. Because there are other sources of surrogate values on the record that are better substantiated, petitioner reasons, the Spanish Study does not provide the best available information regarding the values of such factors in a market economy country, as required under section 773(c)(1)(B) of the Act. According to petitioner, the Spanish Study presents the conclusions of one individual. Petitioner argues that the Government of Andalucia did not initiate the Spanish Study, did not select, supervise, or pay the consultant, and did not perform the data analysis. Instead, petitioner asserts, the consultant was selected, hired, and paid for by Alfocan S.A.- and Andalucian crawfish processor. Petitioner asserts that the consultant drafted the questionnaire himself, without the imposition of any criteria or parameters by the Andalucian government. Furthermore, petitioner argues, it appears that final approval of the Spanish Study was reserved for Alfocan, as evidenced by the other Andalucian crawfish processors who indicated that they never received drafts for their approval. Finally, petitioner asserts, the consultant's conclusions were not checked against any of the companies' actual data. Thus, petitioner argues, the Spanish Study is not entitled to presumptions of neutrality and reliability that can be afforded official government data. According to petitioner, the Spanish Study does not provide actual data for the total volume and value of whole, live crawfish sold in Spain during any period. Instead, petitioner asserts, the data for total volume is based on rough estimates provided by only a portion of the industry, and the data for total value was derived through the application of a flawed allocation to the volume data based on the average prices reported by only a few companies (or possibly only one). Petitioner argues that no value figure derived in this manner can possibly be accurate. Petitioner asserts that total quantity was requested for each season, but not total value. Instead, petitioner states, an average unit price for each season was requested. According to petitioner, in a market with such large variations in supply, and therefore in price, during each season, a rough estimate of average unit prices is not likely going to be accurate. Petitioner argues that the consultant then compounded the error by reallocating the value data, based on the experience of one or more other companies. In light of the consultant's refusal to identify the company or companies used to perform the reallocations, petitioner argues, it is difficult to comment further on the methodology. However, petitioner asserts, it should be clear that the purchasing patterns of so-called "nurseries," which are interested in larger and more attractive specimens for the live market, are unlikely to correspond to the purchasing patterns of processors who make tail meat. NN/LP contend that Spanish data contained in the Spanish Study are preferable to Australian data for purposes of valuing live crawfish, and that the Department should revert to its previous determinations and hold that the Spanish crawfish prices should be used as the surrogate value for live crawfish. According to NN/LP, the Andalucian crawfish industry is responsible for almost 100% of total Spanish crawfish production. NN/LP argues the Spanish Study contains comprehensive, detailed, definitive information on the price of live crawfish in the Spanish market, including charts of average monthly prices for live Spanish crawfish. Citing section 351.408(c)(1) of the Department's regulations, NN/LP asserts that the Department has a clear preference for publicly available data when it comes to calculating normal value for nonmarket economy (NME) cases. NN/LP argues that the Department did not meet this requirement in this instant case. Instead, NN/LP states, the Department relied upon an Australian live crawfish price that was provided by a private individual, and is not in any sense "publicly available" data. Furthermore, NN/LP asserts that the only "support" for the Australian price consists of sample invoices. NN/LP argues that this is inadequate. According to NN/LP, while the Australian producer may have provided some selected invoices in support of the price list, this is not the type of "proof" normally used to prove crawfish prices-the key surrogate value in this case. According to NN/LP, in the Preliminary Results, the Department relied upon Australian prices based upon a single price quotation, without any real proof that this price was based upon a significant quantity of sales. Moreover, NN/LP argues, none of the data used was actually verified by the Department. According to NN/LP, it has, in previous reviews in this same case, placed invoices from producers of crawfish tail meat from Spain on the record. However, NN/LP states, the Department has strenuously avoided using those invoices on the grounds that they are not a reliable source of published government data. NN/LP argues that the same logic applies here, in that in contrast to the Australian prices, the Spanish data is from an official, publicly available government report. Thus, according to NN/LP, the Department should rely upon the Spanish Study because it is PAI. According to NN/LP, in a recent new shipper review, petitioner argued that the Australian prices were superior to other data on the record because Australia had live crawfish production of 419 metric tons, and that this quantity was allegedly larger than data from other countries. See Final Results NSR (9/99-3/00), and accompanying Decision Memorandum at Comment 1. NN/LP asserts that the surrogate value which can be derived from the Spanish data is based on a much higher quantity than the Australian data used by the Department for purposes of the Preliminary Results. According to NN/LP, the data supplied by the Spanish Study shows that Spain captured 2,721 metric tons of crawfish during the period of review-a total over 708% higher than that of Australia. Thus, NN/LP argues, the Spanish Study clearly demonstrates that Spain is a significant producer of crawfish. Furthermore, NN/LP states, it appears that the Department relied upon a single price from a single producer in Australia. NN/LP argues that this is not scientific. In contrast, according to NN/LP, the Spanish data allows the Department to base its surrogate value upon a much larger sampling and should therefore be preferred. According to NN/LP, the Department has determined on repeated occasions that it is the Department's aim to use surrogate price data which is representative of a range of prices within the period of review (POR). NN/LP asserts that the data provided in the Spanish Study correspond to the catch volumes and the prices for whole, live crawfish paid to fishermen in every month of the POR (including months in which tail meat was produced). NN/LP argues that the Australian data is clearly inferior in quality when compared to the Spanish data because the latter is more representative of what the price of whole crawfish would be in China if that price was market-driven. NN/LP asserts that in its new shipper review, the Department made it clear that the quantity of the data involved is a determining factor in selecting surrogate values: "We agree with Petitioners. In the Department's 'Surrogate Selection Memorandum' . . . we further noted that Spanish imports from Portugal are significantly larger in comparison both to Spanish imports from countries other than Portugal and U.S. imports of a similar HTS category . . . ." Freshwater Crawfish Tail Meat from the People's Republic of China; Final Results of New Shipper Review, 64 FR 27961, 27962 (May 24, 1999) (Final Results NSR (9/97-3/98). Thus, NN/LP argues, Department precedent clearly mandates the use of Spanish data in lieu of Australian data. According to NN/LP, when available, the Department prefers to use surrogate data for identical merchandise. NN/LP argues that the Department has repeatedly expressed its preference for identical merchandise. In this case, NN/LP points out, the Department relied upon the price for yabbies-a species of crawfish differing from p. clarkii: the species found in both China and the United States. NN/LP states that crawfish from Spain are of the same species (p. clarkii) as the Chinese crawfish under review, and are therefore identical merchadise. According to NN/LP, as there is no reason to believe that the Spanish data is distorted or unreliable, the Spanish data is preferable to the Australian prices for yabbies, which can, at best, be considered a comparable product. According to NN/LP, petitioner's Case Brief focuses in great part on allegations that the Spanish Study performed by the Government in Andalucia is flawed. NN/LP claims that it has placed on the record an official Government of Andalucia publication, printed and sanctioned by the Department of Fishing and Agriculture of the Government of Andalucia. According to NN/LP, governments frequently hire outside consultants to assist them with various reports/projects. Nonetheless, NN/LP asserts, these reports are still government, not private, reports. NN/LP notes that in the last review, petitioner complained about official Government of Spain import statistics, and that, in that case, respondents merely requested that the Department contact the Government of Spain directly to confirm to the accuracy of the statistics at issue. According to NN/LP, the Department did so and found that petitioner's allegations were false. NN/LP encourages the Department to do the same thing for the current administrative review. In this case, NN/LP states, petitioner again asks the Department to ignore official government publications because petitioner's confidential informant thinks that the Spanish Study may in some way be inaccurate. According to NN/LP, if the Department accepts petitioner's allegations, then any government publication in the future, be it import statistics, World Bank studies, etc., could similarly be impugned by any petitioner and/or respondent who can find somebody to say something negative against the data at issue. NN/LP argues the petitioner is asking the Department to make a stark choice: (1) whether to accept an official government report; or (2) whether to accept at face value an affidavit from a confidential source to overrule what NN/LP considers an official Government of Andalucia publication. However, NN/LP asserts, even if the Department were to consider accepting at face value the affidavit of petitioner's confidential informant, the Government of Andalucia's publication would still have to be used for purposes of the final results. According to NN/LP, the Spanish Study sets forth in exacting detail several aspects of the Spanish crawfish industry: (1) it describes the history of crawfish production in Spain; (2) it provides prices and quantities for crawfish catches during calendar years 1999 and 2000; (3) it sets forth quantities of tail meat produced; and (4) it delineates the months in which there is crawfish tail meat production. According to NN/LP, even if one accepts petitioner's argument that the figure in the Spanish Study for total tail meat produced in 2000 is inaccurate, Spain is still a large producer of crawfish tail meat-a much larger crawfish tail meat producer than Australia, the preferred country for petitioner. More importantly, NN/LP argues, petitioner's informant did not contradict the quantity of live crawfish caught and the prices of those live crawfish. According to NN/LP, a large part of petitioner's Case Brief goes to the fact that they believe that the Spanish prices are aberationally low. However, NN/LP argues, petitioner's confidential informant could not dispute the quantities of live crawfish caught, or the average prices for those crawfish. In effect, NN/LP asserts, petitioner's confidential informant has unintentionally confirmed the validity of the live crawfish prices reported in the Spanish Study. NN/LP argues that the Spanish Study does not represent the conclusions of a single man. Instead, NN/LP asserts, officials from the Andalucian Department of Environment participated in, were consulted on, and contributed information to, the Spanish Study. NN/LP also argues that officials of the Andalucian Department of Agriculture and Fisheries assisted in the Spanish Study's creation, and reviewed it before it was finalized. NN/LP further argues that the consultant did not draft the survey questionnaire by himself. Instead, NN/LP asserts, the consultant drafted it in conjunction with Andalucian Department of Agriculture and Fisheries officials. NN/LP also argues that Alfocan did not have final approval authority over the Spanish Study, and that there is no evidence on the record to indicate this. To the contrary, NN/LP asserts, the Spanish Study was submitted to Andalucian Department of Agriculture and Fisheries officials for review, and that there is nothing on the record to indicate that these officials were not in possession of the information needed to assess the data. NN/LP argues that, despite the fact that it didn't request data on a monthly basis, the questionnaire used in development of the Spanish Study clearly requested enough data to make the Spanish Study reliable, and provided an adequate basis upon which to establish live crawfish prices. Furthermore, NN/LP argues that monthly data was obtained from certain companies, and that it was reasonable for the consultant to assume that prices paid by the various crawfish processors did not vary significantly from processor to processor. According to Yangzhou Lakebest Co., Ltd., Qindao Rirong Foodstuff Co., Ltd., Yancheng Heiteng Aquatic Products & Foods Co., Ltd., and Suqian Foreign Trade Corp. (Lakebest et al.), the Department's trip reports establish that the Andalucian crawfish industry is significant, that its companies harvest and process the same genus and species of crawfish that are harvested in China and the United States, and that its overall structure, considering harvesting techniques and growing seasons, is nearly identical to that of China. Lakebest et al. assert that the scope, variety, and expertise of those individuals the Department interviewed during its trip to Spain provide proof that the Andalucian crawfish industry is a significant contributor to the region's agricultural economy, and is of interest to relevant government agencies in Spain. Lakebest et al. also assert that the Department's "Spain Trip Reports" evidence total annual production of tail meat in Andalucia at roughly 165 metric tons-far exceeding the 40 metric tons of annual production of whole Australian yabbies, as cited in the Department's July 18, 2001 trip report. Furthermore, Lakebest et al. argue that the issue is not whether the Spanish Study was an official government report, but whether it was reliable. Lakebest et al. assert that the Spanish Study is reliable. According to Lakebest et al., the Spanish Study is comparable to surrogate value sources the Department has used in other cases. Lakebest et al. give as an illustrative example the Department's use of surrogate data from the publication "Chemical Weekly" in many NME proceedings, even though it is not an official government publication, and provides only a summary of price quotes based on inquiries to an assortment of companies. Lakebest et al. point out that "Chemical Weekly" specifically states that it cannot guarantee the accuracy of the prices it publishes, as they are based only on the enquiries made by their correspondent, and as such, are not firm prices between buyer and seller. According to Lakebest et al., the Department has also acknowledged a preference for using surrogate values that are based on broad averages. Lakebest et al. argue that the Spanish Study reflects a broad average of crawfish prices in Spain, representative of the industry. Department's Position: We agree with petitioner, in part. The Department considers it appropriate, in NME cases, to rely, to the extent possible, on PAI from the first choice surrogate country to value all factors of production. However, if there is no reliable information from the first choice surrogate country for a particular factor, we will attempt to use public data from another surrogate country. As noted in Cut-to-Length Carbon Steel Plate from the People's Republic of China; Final Results and Partial Rescission of Antidumping Duty Administrative Review, 62 FR 61964, 61973 (November 20, 1997) (CTL Plate), certain general principles have guided the Department's practice in selecting surrogate values. We have a long-standing practice of preferring PAI to other types of information. As noted in Manganese Metal From the People's Republic of China; Final Results and Partial Rescission of Antidumping Duty Administrative Review, 63 FR 12441, 12442 (March 13, 1998) (Manganese Metal), where possible, we select PAI which is: (1) an average non-export value; (2) representative of a range of prices within the POR or most contemporaneous with the POR; (3) product-specific; and (4) tax-exclusive. It is important to emphasize, however, that our overarching mandate is to select the best available information (in accordance with section 773(c)(1) of the Act, which involves weighing all of the relevant characteristics of the data, rather than relying solely on one or two absolute "rules"). There is no hierarchy for applying the above-stated principles. Thus, the Department must weigh available information with respect to each input value and make a product-specific and case-specific decision as to what the "best" surrogate value is for each input. CTL Plate, 62 FR at 61973. More specifically, there is no ranking or hierarchy that attaches to the four criteria in Manganese Metal, and the determination of what data are best necessarily is made on a case-by-case basis. It is undisputed that, in the original investigation of sales at less than fair value (LTFV), and in all subsequent reviews under this order, none of the countries listed in the surrogate country selection memos for this order have ever been found to be significant producers of crawfish tail meat. See e.g., Notice of Preliminary Determination of Sales at Less Than Fair Value: Freshwater Crawfish Tail Meat from the People's Republic of China, 62 FR 14392, 14393; see also, "Memorandum from the Office of Policy to Maureen Flannery, Program Manager, Group III/Office 7 of AD/CVD Enforcement," dated March 5, 2001. Moreover, we have no surrogate value for the whole, live crawfish input from any of those countries. Consequently, the Department has always been forced to rely upon PAI from other market economy countries. As noted above, in the original investigation, and in certain previous reviews of this order, the Department used data on imports into Spain from Portugal. In the Final Results ADR & NSR (9/98-8/99), the Department stated its intention to search for new sources of surrogate data for the valuation of the whole, live freshwater crawfish input in ongoing and future reviews because the imports into Spain from Portugal were no longer usable. Thus, for purposes of the September 1999 to March 2000 new shipper review, the September 1999 to August 2000 new shipper review, and the current administrative review, we looked for more appropriate data. See Final Results NSR (9/99-3/00), and accompanying Decision Memorandum at Comment 1. We found it in the Australian data which now forms the basis of our live crawfish surrogate value. In the Australian data, we have fully verified, fully reliable, product-specific, average non-export values representative of prices over several years, including the POR. Id.; see also Final Results NSR (9/99-9/00), and accompanying Decision Memorandum at Comment 1. It satisfies the criteria of both CTL Plate and Manganese Metal. As noted above, there is no hierarchy for applying the principles discussed in CTL Plate and Manganese Metal, and the Department must fully consider available information to satisfy the overarching mandate to select the best available information, weighing all relevant characteristics of the data, in accordance with 773(c)(1) of the Act. We followed this rationale in choosing the Australian data over all other sources of information that had been considered and/or utilized in setting the live crawfish surrogate value, and we follow it again now in comparing the Australian data to the Spanish Study, for the purpose of determining whether the information contained within the Spanish Study constitutes the best available information on the record. The Spanish Study is a general study of the crawfish industry in Andalucia, Spain, covering calendar years 1999 and 2000. See "Freshwater Crawfish Tail Meat from The People's Republic of China-Meetings Regarding the Crawfish Industry in Spain: Consejeria de Agricultura y Pesca (Department of Agriculture and Fisheries), Junta de Andalucia," (the "Spanish Trip Reports"), dated March 12, 2002. Whole, live crawfish price data are only one small part of the Spanish Study. The Spanish Study does not contain data on live crawfish prices, regularly maintained and published by government authorities. The Spanish Study is only a study, and not a compilation of price statistics, regularly maintained by a government. Therefore, in order to determine whether price information within the Spanish Study constituted the best available information for the live crawfish surrogate value, our first step was to develop an understanding of the fundamental nature of the price information in the Spanish Study (e.g., to examine the methodology used in gathering and calculating the data, to determine the extent to which it was tested and checked for accuracy and statistical validity, etc.). In other words, the Department wanted to take steps to assure itself of the reliability and accuracy of the Spanish Study. It was not necessary to perform this type of analysis for the ABARE price statistics (which ultimately were not utilized by the Department in the previous administrative review-see Final Results ADR & NSR (9/98-8/99)) because they were data on live crawfish prices, regularly maintained and published by government authorities, and were not part of a broad-based "study" of the industry, as is the case with Spain. As noted above, while we would have preferred to use the published government statistics in Australia for the valuation of the input, the clear demarcation in sizes between Australian and Chinese freshwater crawfish processed into tail meat, as well as the fact that only the small, seconds or surplus yabbies go into tail meat production in Australia, led us to conclude that using the ABARE statistics, which were inclusive of all sizes, was not appropriate. See Final Results ADR & NSR (9/98-8/99), and accompanying Decision Memorandum at Comment 1. Because of this, we gathered additional Australian price information from two of the five yabby producers in Western Australia (in the form of price lists and supporting invoices supplied by individual crawfish producers) for smaller- sized yabbies, which we verified were processed into tail meat. We found that the price for yabbies was consistent over time, from company to company. See "Freshwater Crawfish Tail Meat from the People's Republic of China: Meetings Regarding the Crawfish Industry in Western Australia (the "Australia Report") at 4-6. We also found that Australian yabby production was significant, with a total annual quantity of 290 metric tons. See Final Results ADR & NSR (9/98-8/99), and accompanying Decision Memorandum at Comment 1. We subsequently determined that this was the best available information on the record to be used for the surrogate value of live crawfish. Id. As noted above, the Spanish Study does not consist of a discrete set of data on live crawfish prices, regularly maintained and published by government authorities. In fact, despite the fact that it was published by the Department of Agriculture and Fisheries, Goverment of Andalucia, the Spanish Study does not appear to be a government product at all. As noted in the "Freshwater Crawfish Tail Meat from The People's Republic of China- Meetings Regarding the Crawfish Industry in Spain: Consejeria de Agricultura y Pesca (Department of Agriculture and Fisheries), Junta de Andalucia" ("Agriculture and Fisheries Report"), and the "Freshwater Crawfish Tail Meat from The People's Republic of China-Meetings Regarding the Crawfish Industry in Spain: Alfocan S.A." ("Alfocan Report"), both dated March 12, 2002, the Spanish Study was actually conceived, and paid for, by one individual, the owner of Alfocan, S.A. (Alfocan)-an Andalucian crawfish processor that directly competes with other Andalucian crawfish processors. He came up with the idea for the Spanish Study, proposed to the Department of Agriculture and Fisheries that it print the Spanish Study, hired an acquaintance of his as the consultant to perform the study, and initially paid the consultant on his own (the only other contribution to the consultant's fees came when one subcontractor of Alfocan was later convinced by Alfocan to contribute a minimal sum-see "Alfocan Report"). Id. The Department of Agriculture and Fisheries did not come up with the idea for the Spanish Study, did not design or otherwise plan the Spanish Study, and did not pay for the Spanish Study. Id. Furthermore, the price information contained within the Spanish Study is not based on complete or actual, transaction-based data. As noted above, the owner of Alfocan hired an acquaintance to perform the Spanish Study. This acquaintance, the consultant owner of Mediterranean Business Consulting (MBC), and author of the Spanish Study, informed the Department's team that his research for the Spanish Study consisted of issuing a questionnaire to crawfish companies in Andalucia, and then following up with personal interviews with each. See "Freshwater Crawfish Tail Meat from The People's Republic of China-Meetings Regarding the Crawfish Industry in Spain: Mediterranean Business Consulting" ("MBC Report"), dated March 12, 2002. The questionnaire contained requests for a variety of general information, including the range of products produced by each company, the percentage of total sales attributable to crawfish, employment numbers for crawfish production, the percentage of production sold to domestic and/or export markets, etc. See Exhibit 1 of the "Agriculture and Fisheries Report." The questionnaire also asked for data on total annual production of whole crawfish versus tail meat, as well as total purchases of whole, live crawfish, and the associated minimum, average, and maximum prices paid for whole, live crawfish in each of the two production seasons (March to July, and July to November). The questionnaire did not request data on a monthly basis. Id. The consultant further informed the Department's team that some of the companies to which he sent the questionnaire provided full responses, and some provided only partial responses-varying in degree of completeness. See the "MBC Report." He did not examine purchase or sales documentation, nor any purchase, sales or production accounting records. He followed up with personal interviews with each crawfish company after receiving questionnaire responses from them. According to the consultant, these visits were made with the purpose of discussing and clarifying, as necessary, the information submitted in the questionnaire responses. The consultant informed the Department's team that he did not examine purchase or sales documentation, nor any purchase, sales, or production accounting records. Id. The consultant also indicated that he did not cross check the information he received from the crawfish companies against any other corroborating records or information. Id. The consultant stated that he did send drafts of the Spanish Study to each participating company so that the companies could check them for any errors. However, as noted in "Spanish Trip Reports," most of the companies the Department's team met with-which make up the bulk of the Spanish crawfish industry (see page 27 of the Spanish Study)-indicated that they never received these drafts. Information provided to us by other Spanish crawfish producers the Department's team interviewed while examining the reliability of the Spanish Study give us further reason to question the validity and accuracy of the price data in it. For example, one company indicated that one of its workers recognized the consultant as someone who had worked with another competing crawfish company. See "Freshwater Crawfish Tail Meat from The People's Republic of China-Meetings Regarding the Crawfish Industry in Spain: Seafood Seville S.L." ("Seafood Seville Report"), dated March 12, 2002. After learning of the consultant's alleged long-term relationship with its competitor, Seafood Seville officials notified all of the other crawfish companies in the area of the suspected affiliation with their competitor, Alfocan, and themselves provided the consultant only with rough approximations of their production, purchase price and volume information. Id. Two other companies (Emfacar S.L. and Arroyo y Terriza S.L.) also indicated that they only provided the consultant with estimated data. As noted in the "MBC Report," according to the consultant, he received purchase price and volume data from a few companies on a weekly basis (however, as noted in the various "Spanish Trip Reports," the only company the Department's team met with that said it provided any information on anything more detailed than a seasonal basis was Alfocan). From these data, the consultant stated that he calculated weighted-average prices and purchase volumes for each month. Id. He declined to reveal which companies- or how many companies-provided data on this basis. However, he explained that he used these data as the basis upon which to allocate the season- total/season-average price and volume figures he had collected in the survey questionnaire responses from other companies to individual months, as reflected in the graphs on pages 22 and 23 of the untranslated version of the Spanish Study. Id. According to the consultant, this allocation was made under the assumption that purchase price and volume fluctuations over the course of the year would be the same across all companies. Id. In other words, if, in a particular month, purchase prices or volumes rose or fell by a certain degree at the company or companies which provided data on a weekly basis, the consultant assumed that purchases prices and volumes rose or fell by the same degree at those companies for which he had only season-wide totals or averages. According to the consultant, he did not cross-check his assumption that purchase price and volume fluctuations over the course of the year would be the same across all companies, nor did he cross-check the accuracy of his monthly purchase price or volume allocations versus any actual company-specific data. Id. As indicated by the information provided by the consultant, Alfocan, the Department of Agriculture and Fisheries, and the other parties noted in the "Spanish Trip Reports," the price data in the Spanish Study were averages calculated on the basis of allocations, which were themselves based upon numerous assumptions and possibly incomplete and/or inaccurate and/or roughly estimated data. Although the Department's team attempted to ascertain the following information, we do not know how many companies supplied the detailed information that the consultant claims to have based his allocation upon. We do not know whether the assumptions upon which this allocation was based were sound. We do not know how many companies provided complete responses to the consultant's questions regarding seasonal averages of purchase prices or volumes. We do not know how many of the companies that responded at all provided accurate information. We do know that the price information provided by the majority of companies participating in the Spanish Study was, at best, roughly estimated, and was not calculated on the basis of actual transactional prices and/or weighted averages thereof. We do know that the consultant did not examine the purchase or sales documentation, nor any purchase, sales or production accounting records of participant companies, and that he did not cross- check the accuracy of his monthly purchase price and volume allocations against any actual company-specific data. We also know that the Spanish Study cannot be construed as an official government report, and that the data in it are not regularly maintained and published by government authorities. In light of all of this, we cannot conclude that the Spanish Study satisfies the "fully reliable" component of the CTL Plate criteria discussed above. Furthermore, although the Spanish Study may adequately serve the purposes for which it was designed and produced by the consultant and the company which paid for it, we cannot reasonably conclude that there is even a substantial likelihood that the price information contained within it is comprised of averages and/or is representative of a wide, or otherwise appropriate, range of prices from within the POR, and not potentially distorted by the influence and/or special interests of any private sector parties. Considering all of the above information, we have determined that the price data contained within the Spanish Study are not the best available information for the live crawfish surrogate value. Consequently, we are continuing to use the whole, live freshwater crawfish price utilized in the Preliminary Results of this administrative review, and the final results of the two most recent new shipper reviews. Comment 3: Size and Weight of Live Spanish Crawfish Petitioner states that, according to information provided by other Spanish crawfish industry participants, the whole, live crawfish processed in Spain may range in size from15 to 20 grams. Furthermore, petitioner asserts, according to information in the Spanish Study, the average size of whole, live crawfish processed in Spain is just over 22 grams. Citing a study by Professor Jay Huner, petitioner claims that Chinese processors routinely produce tail meat from crawfish with live weights well over 20 grams, including crawfish with live weights of 40-70 grams. Thus, petitioner argues, based on the record of this review, there is a significant difference in physical characteristics between Spanish and Chinese crawfish. In contrast, petitioner asserts, the range of crawfish sizes used in China overlaps almost entirely with the range of sizes represented in the Australian data. According to petitioner, in market economies, smaller crawfish are less valuable to the processor for tail meat production because more crawfish must be peeled to produce a given quantity of tail meat, thereby increasing the processor's labor costs. Petitioner argues that it is therefore inappropriate to use a surrogate value that does not reflect prices for the larger crawfish used regularly by Chinese processors. According to petitioner, persons interviewed by the Department, and the Spanish Study itself, acknowledge that crawfish prices in Spain vary based on crawfish size. However, petitioner asserts, the Spanish Study does not provide any size-specific price information. According to petitioner, the record establishes that crawfish size is determined overwhelmingly by environmental factors, as opposed to genetics. Thus, petitioner argues, while the Spanish and Chinese crawfish may be of the same species, more must be know to determine whether they are of comparable sizes. Petitioner argues that the record of this review indicates that Spanish crawfish are significantly smaller than the crawfish used by processors in China. In contrast, petitioner asserts, the Australian crawfish data permit the Department to ensure that it is using a value appropriate to the crawfish sizes that are actually used in China. Thus, petitioner argues, the Department should not use a Spanish average price for a range of sizes that has not been shown to correspond to the range of sizes used in China. NN/LP asserts that petitioner has put nothing on the record to support a conclusion that p. clarkii in Spain and China would not be the same size due to differing environmental factors. NN/LP argues that evidence suggests otherwise, as both countries have short crawfish seasons, and both countries harvest a significant portion of their crawfish from rice fields. NN/LP argues that there is no evidence showing that Spanish crawfish are significantly smaller than Chinese crawfish. According to NN/LP, petitioner's PAI indicating various size ranges offered for sale by Chinese producers does not show how much of each size the Chinese actually have. NN/LP argues that it would be more logical to conclude that petitioner's PAI indicates that Chinese crawfish may be smaller than Spanish crawfish because the majority of sizes that Chinese companies offer for sale in the PAI are above the 150 count size. NN/LP also asserts that there is no evidence on the record to support petitioner's affiant's statement that tail meat in Spain is only available in sizes above 150 pieces of tail meat per pound. Finally, NN/LP argues that the Department's prior use of Spanish import and export statistics never contained data based on different sizes of crawfish, and that in fact the Department has, in the new shipper and first administrative review for NN/LP, rejected arguments supporting price differentiation based on size. In addition, NN/LP indicates that it has difficulty understanding the basis for rejecting Spanish data simply because crawfish in Spain may be slightly smaller than Chinese crawfish. In fact, NN/LP states, there is no information on the record to suggest that the Chinese routinely use larger size crawfish than do Spanish producers. Lakebest et al. echoe the arguments of NN/LP on this issue. Lakebest et al. also assert that size is irrelevant in a comparison of Spain and China because all sizes of crawfish are processed into tail meat in both of these countries. Size only matters in a comparison of China and Australia, Lakebest et al. contend, because only certain sizes of yabbies are processed into tail meat. Department's Position: For the reasons provided in Comment 2, we have concluded that the Spanish Study does not provide an appropriate surrogate value for whole, live crawfish. These comments are therefore moot. Comment 4: Whether Crawfish Capture in Spain Is Performed with Unbaited Nets Petitioner states that according to the Spanish Study, crawfish in Spain are captured using unbaited nets, which are laid out in the rice fields and adjacent channels. According to petitioner, this is a highly unusual method of crawfish capture which appears to be unique to Spain. As pointed out by petitioner, Professor Huner (a marine biologist and crawfish specialist) reports that, in North America, "[c]rayfish are harvested almost exclusively with baited mesh traps." Petitioner's PAI Exh. 7 at 48 (citing five other studies). According to petitioner, the following quote from Professor Huner's work indicates that the use of nets produces inferior results, both in terms of the physical characteristics of the crawfish and in terms of the economic consequences: "Seine and trawl systems are not widely used to harvest crayfish for two reasons. First, they capture all crayfish in their paths so that sensitive and fragile premolt, soft, and recently molted postmolt crayfish are caught as well as the stable intermolt specimen attracted to traps. The weak crayfish must be sorted from the strong ones, an additional expense warranted only if the sorted crayfish have high enough value to justify the added expense. Second, seines and trawls are difficult to use in heavily vegetated crayfish ponds." Id. at 55. See also Petitioner's PAI, dated May 25, 2001, at Exhibit 9 (describing the "unique" Spanish method). Petitioner argues Huner's concerns are echoed by Fisheries Western Australia, which notes that the act of dragging a net "stirs up the bottom sediment in the dam greatly... and is not recommended for commercial producers" and refers to it as "a bad harvesting method." See "Australia Report" at Exhibit 1. According to petitioner, there is no evidence that crawfish in China are captured through the use of nets. To the contrary, petitioner argues, the Department has found that the methods employed for crawfish production in China are similar to those used in Australia, where nets are not used. According to petitioner, in contrast to nets, crawfish traps are baited and are only about one meter long by one-half meter in diameter. Petitioner's PAI, dated May 25, 2001, at Exhibit 9. In natural fisheries, such as those found in China and Australia, petitioner asserts that a fisherman uses 100-500 traps, and must check each trap once to three times daily, depending on catch rates-entailing much more cost and effort than the use of an unbaited net, and limiting the catch to larger crawfish. Petitioner also argues that where unbaited nets are used, and extraordinary efforts are not made to sort the catch, the fisherman's cost per kilogram of crawfish is lower, as is the average size of each crawfish captured. Thus, petitioner reasons, the use of a radically different method of capture in Spain has concrete commercial consequences: lower costs, smaller crawfish, and crawfish of inferior quality. Petitioner argues that each of these factors is likely to push unit values downward in comparison to crawfish captured with traps. According to petitioner, these differences, which were not explored on the record of previous reviews, counsel against the use of Spain as the surrogate country for valuation of Chinese crawfish in this review. According to NN/LP, petitioner's case brief is misleading because the Spanish Study states as follows: "The most common fishing method is the place nets in the rice fields and adjacent channels without any bait. In some areas, during the summer season (July-November), there is such abundance of red crabs {crawfish} that it is not even necessary to lay out nets. The art of fishing consists of going to the field with a shovel and pick up red crabs." However, NN/LP argues, even if petitioner's allegation were true, it is not relevant. To NN/LP's knowledge, never in the history of antidumping cases has the method of production/capture been considered by the Department in determining the validity of a surrogate value. According to NN/LP, in any NME case, the Department simply tries to find the prices of the factors which are used to make the subject merchandise. NN/LP notes that the Department has already made a determination on this issue in the original crawfish investigation: "We have determined that it is not appropriate to adjust the surrogate value to account for alleged differences between the labor cost in the country in which the input is valued and the labor costs in another country which is more economically comparable to the NME country…{f}or the Department to attempt such an adjustment, whether to account for the alleged impact of a differential in labor rates, or any other costs underlying the price of the imported product would require a complex economic analysis. There are a number of factors, including production and regional demand and supply functions as well as the market price for a particular imported product. The impact of these factors would be difficult if not impossible to determine with any certainty." Final Determination 3/96-8/96. Department's Position: For the reasons provided in Comment 2, we have concluded that the Spanish Study does not provide an appropriate surrogate value for whole, live crawfish. These comments are therefore moot. Comment 5: Whether Spanish Crawfish Prices Are Aberrational Petitioner points out that Petitioner's PAI Exhibit 23 (May 25, 2001) provides import and export prices for freshwater crawfish in thirteen European countries, including Spain. Petitioner notes that the weighted- average unit value, including both imports and exports, for all twelve countries other than Spain, was $8.40 per kilogram. In contrast, petitioner notes, the average unit value for Spain was just $4.36 per kilogram. At the same time, the weighted-average unit value of crawfish exports from all twelve countries other than Spain was $9.04 per kilogram, while the average unit value of Spanish crawfish exports was only $4.45 per kilogram. Petitioner points out that in each comparison, Spanish unit prices were lower than unit prices found in any other country. According to petitioner, it is well established that in NME cases, the Department will disregard potential surrogate values that are aberrational. See Final Determination of Sales at Less Than Fair Value: Steel Concrete Reinforcing Bars from the People's Republic of China, 66 FR 33522 (June 22, 2001) (Reinforcing Bars), and accompanying Decision Memorandum. Furthermore, according to petitioner, in deciding whether a value is aberrational, the Department may compare the value to values found in other market economy countries. Id. Petitioner argues that here, the record shows that crawfish prices in Spain are aberrationally low compared to other market economy countries. Accordingly, it is petitioner's view that prices in Spain cannot provide an appropriate surrogate value, based on the record of this review. According to NN/LP, the basis for petitioner's allegation is an undated study which includes a chart based upon 1990 import and export prices for freshwater crawfish in various European countries. NN/LP argues that, in essence, petitioner's argument is that the Department should reject official POR data from the Government of Andalucia on the grounds that a 1990 private study shows prices which are seemingly higher or lower than prices in the Spanish Study. NN/LP asserts that the Department should use the live crawfish prices in the Spanish Study for purposes of the final results. Department's Position: For the reasons provided in Comment 2, we have concluded that the Spanish Study does not provide an appropriate surrogate value for whole, live crawfish. These comments are therefore moot. Comment 6: Similarity of Spanish GDP to That of China According to NN/LP, Spain has long been championed by petitioner and the Department as the best surrogate country for live crawfish valuation. NN/LP argues that the Department has stated that Spain is at a level of economic development, in terms of Gross Domestic Product (GDP), more comparable to China than other countries which were significant producers of tail meat, and that the Department used Spanish live crawfish data in the 1997-1998 and 1998-1999 administrative reviews, as well as several new shipper reviews. NN/LP asserts that per capita GDP is a key factor in the selection of a proper country for obtaining surrogate values. According to NN/LP, section 351.408(b) of the Department's regulations provides that the Department "will place primary emphasis on per capita GDP as the measure of economic comparability." NN/LP also asserts that, according to 1999 World Bank economic data, China had a per capita GDP of $780, Spain had a per capita GDP of $14,800, and Australia had per capita income of $20,950. According to NN/LP, one of the reasons Spain was selected over the United States in NN/LP's new shipper review was that the per capita income of Spain was closer to that of China than was that of the United States. NN/LP argues that the same logic applies here. Since Spain's per capita income is closer to that of China than is that of Australia, if the surrogate value is equally valid, NN/LP asserts that the statutory preference is for Spain. NN/LP asserts that petitioner's central argument in the past was that because per capita GDP was lower in Spain than the United States, then Spain must be selected as the source for a surrogate value for live crawfish. Here, NN/LP states, Australia (like the United States) clearly has a per capita GDP higher than Spain. Given the quality of Spanish prices for live crawfish on the record, NN/LP argues that the Department must use the Spanish data. Department's Position: The Department's regulations state that the Department will place primary emphasis on per capita GDP as the measure of economic comparability. See section 351.408(b) of the Department's regulations. However, economic comparability is required only to the extent possible. In instances when the Department is not able to find surrogate value information using a country at a comparable level of economic development, the Department has the discretion to select another country as a surrogate to determine the appropriate value. See Writing Instrument Mfrs. Ass'n, Pencil Section v. United States, 984 F. Supp. 629, 638-639 (November 13, 1997). Although Australia's per capita GDP is substantially above that of China, we are using the Australian crawfish to value whole, live freshwater crawfish, because, as discussed in further detail in Comment 1 above, it is the best available information on the record. Comment 7: The Spain Trip Versus the Australia and Mexico Trips NN/LP claims that it has been asking the Department to collect Spanish crawfish prices for years now, and that it has submitted (in previous segments of this proceeding) Spanish invoices to the record. NN/LP also implies that the Department should have gone to greater lengths to obtain usable live crawfish surrogate value data from Spain prior to the February 2002 trip. NN/LP asserts that, in choosing a surrogate value, the Department basically looks at three key issues: (1) comparability of the surrogate country selected with the subject country; (2) volume of the surrogate item in the surrogate country and whether that surrogate item is comparable to the factor input; and (3) the value of the surrogate item. Section 773(c) of the Act. According to NN/LP, the Department has stated that "section 773(c)(1) of the Act mandates that the Department will determine the factors of production in an NME using the best available information. Inherent in the best available information standard is Congress' recognition that while the Department should strive to identify ideal values for factors of production, ideal factor information may not be available given the statutory deadlines as well as the Department's limited resources." See Final Results NSR (9/99-3/00). According to NN/LP, the Court of International Trade in Shandong Huarong General Corp.; Lianoning Machinery Import and Export Company; and Tianjin Machinery Import and Export Corp. v. United States, 159 F. Supp. 2d 715, 719-720 (Ct. Int'l Trade 2001) held that "despite the broad latitude afforded Commerce and its substantial discretion in choosing the information it relies upon, the agency must act in a manner consistent with the underlying objective of 19 U.S.C. § 1677b(c)….This objective is achieved only when Commerce's choice of what constitutes the best available information evidences a rational and reasonable relationship to the factor of production it represents." NN/LP argues that the Department has yet to satisfy its section 773(c)(1) obligations in the present administrative review with respect to live Spanish crawfish. NN/LP claims that it has been asking the Department to collect Spanish crawfish prices for years now, and that it has submitted (in previous segments of this proceeding) Spanish invoices to the record. NN/LP also argues that it requested that the Department conduct audits of as many producers as possible while in Spain, and that it ask the various Spanish Study participants if they thought the prices in the Spanish Study were accurate. According to NN/LP, the Department was required by law to investigate the Spanish Study further. NN/LP further argues that there is a pattern (including the Department's research efforts involving Mexico) of the Department refusing to collect price data from countries other than Australia. NN/LP also argues that in its trip to Spain, the Department examined the Spanish Study in a very cursory and subjective fashion, and, unlike in Australia, either did not collect price information, or collected price information and failed to report it. NN/LP argues that neither of these possibilities is legally acceptable. Lakebest et al. argue that the Department's visit to Spain should have been to corroborate Andalucian crawfish prices that had been placed on the record of this proceeding. Lakebest et al. also contend the Department failed to collect and/or report price information from the Spain trip, despite the fact that they went to Australia for this purpose, and had many opportunities to gather price information from a variety of government and industry representatives in Andalucia. Petitioner contends that it is neither the Department's normal practice, nor a requirement of the antidumping statute or regulations, for the Department to conduct field trips to other countries in order to test the validity of publicly available surrogate value data, or to collect its own surrogate value data. According to petitioner, the Department's regulations envision a process by which respondents and domestic parties submit PAI, which the Department then evaluates, in order to promote accuracy, fairness, and predictability. See Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27295, 27366 (May 19, 1997). Petitioner asserts that if the Department finds inadequacies in the PAI submitted, the Department may, and often does, seek alternative PAI on its own initiative-usually by local research in Washington, or through queries to overseas offices of the Foreign Commercial Service. According to petitioner, field trips are rarely used for this purpose. In this case, petitioner asserts, the Department went to the extraordinary effort of sending teams to Australia and Mexico in June 2001, for the purpose of ascertaining the reliability of PAI submitted by both themselves and respondents. According to petitioner, the Department did not go to Spain at that time because all Spanish surrogate valuation information then on the record had been shown to be unusable. Petitioner contends that the Department attempted to locate reliable data on the Spanish crawfish industry in July 2001, through its normal channels of inquiry (e.g., via the Foreign Commercial Service Office and Foreign Agricultural Service officials in Madrid), but found nothing usable. Petitioner further argues that the fact that "Central Government Sources (Madrid), Regional Government Sources (Andalucia), and Provincial Sources (Sevilla)" were unable to reference a source of data on crawfish production in Spain when contacted by the Foreign Commercial Service official attempting to locate data on the Department's behalf is evidence that the Spanish Study was not something that the Andalucian Government took seriously or stood behind. According to petitioner, subsequent to submission of the Spanish Study, the Department's only responsibility with respect to the Spanish Study was to determine whether it was the best source of surrogate data on the record. Petitioner argues that it was wrong of the Department to attempt to corroborate the Spanish Study, as it was flawed on its face, and in light of the fact that respondents had, up to that point, put virtually nothing on the record of this review regarding the Spanish crawfish industry. According to petitioner, when the Department got to Spain, it found not a careful government study, but an unscientific, unsupervised hodgepodge of rough estimates and unsupportable allocations, all orchestrated by a single company with longstanding connections to respondents and the Chinese crawfish trade. In contrast to the Australian prices, which were stable over time, petitioner asserts that the prices and supply in the Spanish Study fluctuate wildly from month to month. According to petitioner, under these conditions, people cannot be trusted to calculate weighted averages accurately in their heads. Furthermore, according to petitioner, the Spanish Study questionnaire's request for "average" price is ambiguous. Petitioner asserts that in a market with wild fluctuations in supply, the average unit price would be quite different from the weighted average unit price. As a result of these problems, petitioner argues, the Department could not possibly have validated the consultant's flawed research by asking individual parties whether the prices appeared to be correct. According to petitioner, the record of this case would not have been improved by the addition of more flawed data from Spain. Petitioner concludes that NN/LP's arguments boil down to a claim that the Department should have collected its own monthly volume and value data from each of the Spanish crawfish processors-after the Preliminary Results had been published, after the deadline for submission of PAI, and after the briefs had been filed. According to petitioners, NN/LP fails to cite a single statute, regulation, or case in support of this assertion. Department's Position: In conducting our background research in Spain on the Spanish Study, once the Department's team learned that price information contained therein did not reflect actual prices, but rather unchecked estimates, our inquiry essentially ended. At that point, it was not appropriate for the team to begin collecting, analyzing, and establishing the accuracy of new Spanish whole crawfish price information for the purpose of calculating average, product-specific, non-export values, representative of a range of prices within a period matching or nearly contemporaneous with the POR. That would have entailed collecting and analyzing data, and essentially composing an original study, which is not responsibility of the Department. See section 773(c)(1) of the Act. The purpose of the trip was only to examine the potential usability of the PAI placed on the record by respondents-to consider the relative quality of alternative information, submitted and proposed for our use by NN/LP, in order to determine whether it could be considered the best available information on the record. Once we found that the data in the Spanish Study could not be an appropriate basis for our analysis, there was no basis for proceeding further to rehabilitate the data. As explained in Final Results ADR& NSR (9/98-8/99), and accompanying Decision Memorandum at Comment 1, at the time that the Department sent teams to Mexico and Australia, we had no usable surrogate value information for live crawfish on the record. We had determined that both Spanish import prices from Portugal and Spanish export prices were unusable. See Final Results ADR& NSR (9/98-8/99), and accompanying Decision Memorandum at Comment 1. Accordingly, in order to find a raw crawfish surrogate value for use in the ongoing reviews, the Department conducted research into the existence of freshwater crawfish industries worldwide, through the internet, libraries, and the U.S. Foreign Commercial Service. Notably, officials with the U.S. Embassy in Madrid, researching the Spanish crawfish industry on our behalf, were not able to obtain data on the size of the industry, the value or volume of production of this industry, or the value and volume of sales of this industry. See "Memorandum to the File from Abdelali Elouaradia, Mark Hoadley, Jacky Arrowsmith and Christian Hughes: Communication and Findings Regarding Whole Live Crawfish Production in Reference to the Administrative Review and New Shipper Reviews of Freshwater Crawfish Tail Meat from the People's Republic of China" ("Crawfish Research Report"), dated July 31, 2001. Because interested parties had submitted information for the record supporting their contention that there were commercial crawfish industries in Australia and Mexico, the Department also sent teams of analysts to Australia and Mexico to examine whether prices for whole, live crawfish produced in those countries could serve as an appropriate surrogate value. The Department sent teams to those countries because it was not clear from the PAI submitted by the parties exactly what price information might be appropriate for use as a surrogate value for whole, live crawfish, and because the parties submitted contradictory information. We did not send teams to any other countries at that time because no other PAI had been submitted by the parties. Although the Department will search for PAI using as many research methods as reasonably possible, we cannot send teams to various countries to conduct research, or to collect, compile, and analyze surrogate price information. Thus, the purpose of the team's trips to Mexico and Australia was entirely different than for the trip to Spain. At the time of the Mexico and Australia trips, the Department had no usable surrogate information for live crawfish. We, therefore, took the additional step of traveling to those countries to actively examine the PAI on the record, and to seek, if necessary and reasonably possible, new information. At the time of the Spain trip, the Department did in fact, have price information that it had found usable. It was therefore not our objective to obtain new or replacement information, but simply to consider the relative quality of alternative information, submitted and proposed for our use by NN/LP, in order to determine whether it could be considered the best available information on the record. The trip was therefore appropriately limited in scope. The Spanish Study was not placed on the record of this case (or otherwise made known to the Department) until October 29, 2001-after publication of the Preliminary Results. At that point, no other surrogate value information regarding Spain had been placed on the record of this review. Although the Department's regulations allow for the submission of surrogate value information up until 20 days after publication of preliminary results, the late timing of such submissions significantly restricts the extent to which the Department can utilize or follow up on any information contained therein. See section 351.301(c)(3)(ii) of the Department's regulations. The current proceeding illustrates this. Regardless of when, subsequent to the October 29, 2001, submission of the Spanish Study, we determined that the information contained within the Spanish Study was not usable as surrogate value information for live crawfish, any attempt by the Department to recreate the Spanish Study by collecting, analyzing, and adequately verifying new Spanish live crawfish price information for the purpose of calculating average, product- specific, non-export values, representative of a range of prices within a period matching or nearly contemporaneous with the POR, for use as a surrogate value for the current review, would have created serious logistical and procedural problems. Such an exercise would have entailed the collection, from at least four Spanish crawfish companies, of actual transactional purchase data, on at least a monthly basis, for a period ideally covering the current POR. This information would have had to have been cross-checked against company accounting records. Given that usable Australian price information was on the record, the Department was not required to conduct such an exercise prior to the fully extended deadline for these final results, particularly where we would not have been able to give parties an adequate opportunity to comment. Section 773(c)(1) of the Act mandates that the Department will determine the factors of production in an NME using the best available information. Inherent in the best available information valuation standard is Congress' recognition that while the Department should strive to identify the best available information for factors of production, ideal factor information may not be available given the statutory deadlines as well as the Department's limited resources. See Final Results ADR & NSR (9/98-8/99), and accompanying Decision Memorandum at Comment 5. It is not the Department's responsibility to recreate PAI submitted by interested parties in order to make it usable. We can only evaluate whether it is usable or not. In light of the history of the Department's efforts to obtain better Spanish surrogate value data for live crawfish under this order, as described in Comment 2, any suggestion by interested parties that the Department's efforts in this regard were lacking under this segment of the proceeding is contradicted by the facts. In all of the segments discussed in Comment 2, the Department tried to find better Spanish data, but was unsuccessful. The interested parties also failed to submit better Spanish data. As for this segment of the proceeding, until the October 29, 2001, submission of the Spanish Study (which was first published in the Summer of 2001), no other surrogate value information regarding Spain had been placed on the record of this review. Nevertheless, we again attempted to obtain usable surrogate value data from Spain with the help of U.S. & Foreign Commercial Service and Foreign Agricultural Service contacts with the U.S. consular community in Spain. See "Memorandum to the File from Abdelali Elouaradia, Mark Hoadley, Jacky Arrowsmith and Christian Hughes: Communication and Findings Regarding Whole Live Crawfish Production in Reference to the Administrative Review and New Shipper Reviews of Freshwater Crawfish Tail Meat from the People's Republic of China" ("Crawfish Research Report"), dated July 31, 2001. In fact, as Andalucian Government officials associated with the Spanish Study stated to the Department's team, "there had never been a study {of the Spanish crawfish industry} done before." See "Freshwater Crawfish Tail Meat from The People's Republic of China-Meetings Regarding the Crawfish Industry in Spain: Junta de Andalucia, Consejeria de Medio Ambiente," dated March 12, 2002 (Consejeria de Medio Ambiente). Regardless, until the October 29, 2001, submission of the Spanish Study, there was no Spanish surrogate value information on the record of this segment of the proceeding-and certainly nothing to suggest that the effort and expense of a trip to Spain before the submission of the Spanish Study by the Department would have yielded worthwhile, usable results. Comment 8: Use of Mexican Data as a Surrogate Value for Whole, Live Crawfish Fujian Pelagic Fishery Group Co., Huaiyin Foreign Trade Corporation 30, Yancheng Foreign Trade Corporation, and Yancheng Yaou Seafood Co. (collectively, Fujian Pelagic et al.) argue that the Department's choice of Australia to value whole freshwater crawfish is flawed. Fujian Pelagic et al. suggest that the Department use Mexican data as the surrogate value for the whole, live crawfish, and they submitted information which they claim establishes that Mexico is a significant producer of crawfish and that Mexico is exporting frozen crawfish tail meat to the United States. Fujian Pelagic et al. state that the Department had dismissed such information for purposes of surrogate valuation in prior proceedings and that the key issue for the Department has been its impression that there is no significant commercial industry in Mexico. See Final Results NSR (9/99-3/00), and accompanying Decision Memorandum at Comment 1. Fujian Pelagic et al. state that there is some disagreement as to the existence of freshwater crawfish tail meat in the Mexican state of Veracruz, and reference a letter from the local government official who serves as the Veracruz Sub-Delegate of Fisheries for the Office of the Secretary for Agriculture, Livestock, Rural Development, Fish and Food (Secretaria de Agricultura Ganaderia Desarollo Rural Pesca Y Alimentacion (SAGARPA)). In this submission, the official states that local fishermen produce, consume and engage in "commercialization" with respect to crawfish. See November 27, 2001 Fujian Pelagic et al. Case Brief at 25. In Exhibit 1C of the Fujian Pelagic et al. November 1, 2001 Surrogate Values Submission, the letter from the local government official who serves as the Veracruz Sub-Delegate of Fisheries for SAGARPA states: "It is the local people near the coast that take advantage of the volume of production for their own consumption and commercialization within the region without leaving a statistical trace of its exact origin." See November 1, 2001, Fujian Pelagic et al. Surrogate Values at Exhibit 1C. Fujian Pelagic et al. explain that because complete official statistics are unavailable, they submitted sample sales information from a company called Pescatalan, S.A. de C.V. (Pescatalan). Fujian Pelagic et al. claim that Pescatalan processed "frozen freshwater crawfish tail meat" locally harvested by fishermen in and around the city of Alvarado in the Mexican State of Veracruz, at a company called Planta Congeladora "Planeta Azul." Fujian Pelagic et al. state that this crawfish tail meat was sold to companies in the United States in late 1999 and early 2000, and note that they included three sample invoices in their surrogate value submission. Fujian Pelagic et al. state that the crawfish tail meat that Pescatalan purchased was invoiced as acocil, camarón, reculilla, and/or langostino. Fujian Pelagic et al. also argue that this merchandise was imported into the United States as frozen freshwater crawfish tail meat and that it would constitute fraud on the U.S. Customs Service to mislabel the merchandise as freshwater crawfish tail meat and then to provide another product. In addition, Fujian Pelagic et al. state that they submitted certain affidavits and statements regarding the collection and availability of data for freshwater crawfish in Mexico, and photographs of commercial facilities used both previously and currently for freshwater crawfish production in the city of Alvarado. Fujian Pelagic et al. claim that they provided evidence that a freshwater crawfish industry has operated in the Alvarado area (of Veracruz) since approximately 1970. Petitioner states that the affidavit from Pescatalan's proprietor and the affidavit from one of Fujian Pelagic et al.'s attorneys submitted in Fujian Pelagic's Surrogate Values Submission, on November 1, 2001, fails to demonstrate that the merchandise 'produced' by Pescatalan, a repackager, was made from freshwater crawfish from Mexico. As for Fujian Pelagic et al.'s claim that the merchandise was imported into the United States as frozen freshwater crawfish tail meat, petitioner notes that Fujian Pelagic et al. did not include customs entry documents with the materials submitted. Petitioner contends, however, that even a customs entry form would not be dispositive. Petitioner states that the U.S. Customs Service rarely performs physical inspections of commercial shipments and that, even when it does, the U.S. Customs Service normally accepts the importer's classification without further inquiry. Petitioner argues that even with the photographs submitted by Fujian Pelagic et al., it has not been shown that Planeta Azul or Casa Zobek, processing facilities in Alvarado, actually process crawfish tail meat. (Fujian Pelagic's attorney provided photographs of another Mexican processor, Casa Zobek, in the November 1, 2001 Surrogate Value submission to establish that tail meat processing exists in Alvarado, since Planeta Azul was not processing tail meat during his visit to Alvarado.) Because Fujian Pelagic et al. have not provided conclusive evidence that these processing companies are actually processing freshwater crawfish tailmeat, information regarding these facilities does not provide a usable surrogate value. Furthermore, petitioner points out that the Pescatalan invoices were self-selected by respondents using unspecified criteria. Petitioner states that the letter from a representative of the transport union workers' union in Alvarado, Veracruz, states that "commercial amounts of processed crawfish pulp (reculilla)" are transported to different cities, but this union representative does not explain what he means by "commercial amounts," and his statement does not establish that Mexico is a significant producer of comparable merchandise. Petitioner claims that the letter from a SAGARPA official, another piece of new information that was submitted in Fujian Pelagic et al.'s November 1, 2001 Surrogate Value Submission, is consistent with the Department's previous findings in Mexico. Petitioner contends that Fujian Pelagic et al. have failed to demonstrate that any species of freshwater crawfish found in Mexico is physically or commercially comparable to the freshwater crawfish used by Chinese processors. According to petitioner, the various species of crawfish were either smaller than p. clarkii (the species of freshwater crawfish that are cultivated in both Louisiana and China) or found not to exist outside the laboratory setting by the Department team. Petitioner concludes that Mexico cannot be used as a surrogate country for the valuation of live crawfish when there is no evidence that freshwater crawfish cultivated in Mexico are comparable to crawfish cultivated in China. Petitioner also contends that the record of this review does not contain reliable price information for freshwater crawfish in Mexico. Petitioner explains that the SEMARNAP (SEMARNAP is the former name for the Office of the Secretary for the Environment, Natural Resources and Fish) data cannot be used for this purpose, because it does not appear to be limited to freshwater crawfish, is collected irregularly, and covers only sporadic shipments in specific months. Department's Position: We disagree with Fujian Pelagic et al. that the information they submitted establishes that Mexico is a significant producer of freshwater crawfish. In June 2001, the Department sent a team of analysts to Mexico to research freshwater crawfish and the possible existence of a freshwater crawfish industry. See "Memorandum to the File from Jacqueline Arrowsmith and Mark Hoadley: Freshwater Crawfish Tail Meat from the People's Republic of China: Meetings Regarding the Crawfish Industry in Mexico," dated July 18, 2001 ("Mexico Trip Report") at 1. While the team was in Mexico, its members interviewed numerous government officials in both Mexico City and in Veracruz, as well as industry officials and researchers in Veracruz who provided information which directly contradicts Fujian Pelagic et al.'s conclusion that a crawfish tail meat processing industry exists in any commercial form. The following excerpts from the "Mexico Trip Report" clearly show that no such commercial industry has existed in Mexico in recent years: As far as procambarus clarkii, Mr. Nieto explained that the Mexican government had tried to start commercial production of procambarus clarkii through the use of farms on Mexico's east coast. Eventually some of these procambarus clarkii farming initiatives were transplanted to the west coast (Sinaloa, Sonora, and Baja California Sur). Because the farms were not successful in cultivating procambarus clarkii, the farms with the assistance of the government imported what is called the Malaysian crawfish ...as an alternative to cultivate...The macrobrachium farmers, according to Mr. Nieto, in general had determined that shrimp farming was more lucrative and abandoned the macrobrachium...."Mexico Trip Report" at page 3. Another passage states: Mr. Nieto explained that, although procambarus clarkii and macrobrachium farming projects had failed, macrobrachium was still caught wild by fishermen. Id. at page 3. Lastly, the "Mexico Trip Report" states: She {Rosa Nunez, a biologist at the Centro Nancional de Investigacion Pesquera} explained that her job is to compile information on local species of freshwater crustaceans: primarily, macrobrachium carcinus, macrobrachium acanthurus, and macrobrachium heterochirus. She stated that she had proposed to her superiors a study of acocil, but her proposal was rejected because her superiors did not believe acocil was commercially significant. Id. at page 6. We agree with the petitioner that there is no dispositive evidence that what Pescatalan sold during December 1999 and January 2000 is even crawfish and not some other type of crustacean. As stated on page 10 of our "Mexico Trip Report," there is ambiguity in the definition of the word acocil (a colloquial Mexican Spanish word for crawfish): Mr. Fuentes and Ms. Cardena, along with the Atlas Pesquero de Mexico, define acocil as cambarellus montezumae montezumae, astacus cambarus, and procambarus clarkii. Mr. Nieto defined acocil as belonging to the cambarellus genus, but added that the definition had been expanding over the past two decades at least in its vernacular use. Ms. Lorán defined acocil as procambarus acanthophorus. Mr. Cruz defined acocil as procambarus acanthophorus and atya scabra. The fisherman in La Rinconada referred to a burrito (atya scabra) as acocil. Mr. Hernandez defined acocil as primarily procambarus montezumae, and secondarily as procambarus astacus. The invoices for sales of partially processed tail meat provided by Fujian Pelagic et al. in their November 1, 2001 surrogate value submission indicate a number of Spanish terms: langostino, pulpa langostino, reculilla, and pulpa de camerón. Given the variations in the terminology and the fact that camerón means shrimp in Spanish, we find that the information regarding Pescatalan's purchases and sales is not sufficient to overcome the findings of the Department team which traveled to Mexico and met with Mexican officials knowledgeable about crustaceans in Mexico, and specifically Veracruz, where Alvarado is located. Furthermore, we agree with petitioner regarding the flaws in the SEMARNAP data. Thus, we conclude there are no reliable Mexican commercial prices of raw crawfish on the record. Assuming that the documentation submitted by Fujian Pelagic et al. provided dispositive evidence that there was a commercial freshwater crawfish tail meat processing industry, this documentation would not validate the use of flawed statistics for whole, live freshwater crawfish prices. Comment 9: Comparability of Economies Fujian Pelagic et al. argue that the Department cannot use Australian yabby prices because Australia is not a comparable economy to China. Fujian Pelagic et al. do note that, where the Department is unable to locate surrogate value information using a country at a comparable level of economic development, the Department has some discretion to select another country as a surrogate to determine the appropriate value. Fujian Pelagic et al. assert that the Mexican economy is more comparable to the Chinese economy than is the Australian economy. Fujian Pelagic et al. argue that because the respondent parties have established through record evidence that there exists a commercial freshwater crawfish industry in Mexico, based upon the requirements of 19 CFR § 351.408(b), which states that the Department will place its "primary emphasis on per capita GDP as the measure of economic comparability," the Department should accept the Mexican whole, live crawfish data supplied by the respondent parties. Fujian Pelagic et al. state that the Department determined in its most recent reviews that Australia's per capita GDP is well above that of China, Fujian Pelagic et al. also refer to exhibits contained in their surrogate values submission, which provide data from several World Bank publications, indicating that Australia is much less comparable to China than is Mexico. Department's Position: The Department's regulations state that the Department will place primary emphasis on per capita GDP as the measure of economic comparability in selecting a country to use in surrogate valuation. See 19 CFR 351.408(b). However, economic comparability is required only to the extent possible. In instances where the Department is not able to find surrogate value information using a country at a comparable level of economic development, the Department has the discretion to select another country as a surrogate to determine the appropriate value. See Final Determination of Sales at Less Than Fair Value: Certain Cased Pencils From the People's Republic of China, 59 FR 55625, 55630 (November 8, 1994). In the original investigation and in several subsequent reviews, the Department used Spain as a surrogate for the valuation of whole, live crawfish, even though Spain's economy is not comparable to China's, because the data on Spanish imports of crawfish from Portugal were the best available information on the record. Similarly, in a subsequent new shipper review, we used data from Australia as a surrogate for raw crawfish valuation, because it was the best information on the record. See Final Results NSR (9/99-3/00), and accompanying Decision Memorandum at Comment 1. Because we have determined that there is not a commercial crawfish industry in Mexico, the relative comparability of the Mexican and Australian economies to China does not preclude the use of surrogate values from Australia to value whole, live crawfish. Comment 10: Suggested Wet-dry Weight Conversion Factor for Crawfish Scrap, based on Information from an Indian Chitosan Producer As discussed in the 1997-1998 review, the production of crawfish tail meat from whole crawfish results in a byproduct, i.e., crawfish shell, which has a value and, thus, should be treated as an offset to the normal value of crawfish tail meat. See 1997-98 Final Results and accompanying decision memorandum. In previous reviews, the Department has determined that the byproduct is a result of the production process and that through the sale of crawfish shells an economic benefit has accrued to Lakebest et al. See, e.g., Freshwater Crawfish Tail Meat From the People's Republic of China: Final Results of Administrative Antidumping Duty and New Shipper Reviews, and Final Rescission of New Shipper Review, 65 FR 20948 (April 19, 2000). In the Preliminary Results of this review, the Department used a September 1999 free-on-board (FOB) factory price quote for crab and shrimp shells to value the by-product of shells. Because the surrogate value was on a dry-weight basis, where shells were sold wet by the Chinese exporter, we incorporated a 30 percent wet-dry conversion factor, based on an article titled "The Development of Crustacean and Mollusc Industries for Chitin and Chitosan Resources," published by S. Subasinghe, page 33. This article identifies wet-dry conversion ratios for crab and shrimp shells on a global basis. Petitioner argues that the wet-dry weight conversion factor for scrap should be 13.3 percent based on information they provided that was published by an Indian Chitosan Producer; Mahtani Chitosan Pvt. Ltd. (Mahtani Chitosan). Petitioner claims its November 1, 2001, surrogate value submission describes a different yield experience in India based on published information obtained from Mahtani Chitosan. Furthermore, petitioner states that since India has been identified as the primary surrogate country for this review, the Department should use the 13.3 percent wet-dry conversion factor as indicated by Mahtani Chitosan instead of the 30 percent shown in the S. Subasinghe article. Petitioner claims that Mahtani Chitosan states that its yield of chitin (a product made from crawfish shells) extraction is 15 percent from dried shells or 2 percent from fresh shells. From this, petitioner has calculated a wet-to-dry weight conversion ratio of 13.3 percent, which it urges the Department to use in the final results. NN/LP, on the other hand, argue that petitioner's suggestion that the Department utilize a wet-dry weight conversion ratio of 13.3 percent is incomprehensible. Instead, these respondents state that the Department should use information they provided because it clearly demonstrates that the actual conversion factor is 50 percent. See Comment 12, below. Lakebest et al. argue that the Department must reject petitioner's request to utilize a 13.3 percent conversion factor for scrap in this administrative review. Lakebest et al. state that petitioner argues for the Department to abandon the 30 percent wet-dry conversion factor applied to the scrap price quote because it has acquired a more favorable conversion factor from published information by Indian Chitosan producer, Mahtani Chitosan Pvt. Ltd (Mahtani Chitosan), which would yield higher dumping margins in this proceeding. Lakebest et al. claim that the Mahtani Chitosan conversion factor is inappropriate because Mahtani Chitosan employs sophisticated techniques in drying seafood shell scrap and extracting chitosan from the waste shells. Lakebest et al. argue that Chinese crawfish producers, on the other hand, simply dry their shell scrap by exposure to sunlight. Lakebest et al. argue that petitioner's suggestion for the Department to ignore the production experience of Chinese crawfish producers and to reduce the wet- dry conversion ratio for shell scrap based on the production practices of Mahtani Chitosan is inappropriate. Department Position: The Department disagrees with petitioner that information regarding Mahtani Chitosan provides a more appropriate wet-dry conversion factor than the article by S. Subasinghe used in the Preliminary Results. While India is at a level of development more comparable to China than is the country from which we obtained the price quote for shell scrap, we have concerns about the applicability of the surrogate information provided by petitioner. Although we have attempted to contact Mahtani Chitosan to obtain more information, we have not been successful. See "Memorandum from Mark Hoadley to the File: Attempts to Contact Mahtani Chitosan Pvt. Ltd.," dated December 6, 2001. Thus, we are unable to judge the applicability of relative chitin extraction ratios for wet and dry shells to the drying of shells independent of chitin production. Without further information, we find that we cannot use the conversion factor submitted by petitioner. Therefore, for the final results of review, we continued to use the same source as in the Preliminary Results, that is, an article published by S. Subasinghe, "The Development of Crustacean and Mollusc Industries for Chitin and Chitosan Resources," page 33. Comment 11: The Appropriate Factor for Use in Calculating a Wet-dry Conversion Factor Petitioner argues the price quote used by the Department in the Preliminary Results to value crawfish scrap is for dried shells for both shrimp and crab, whereas the wet-dry conversion factor of 30 percent used by the Department in the Preliminary Results was based only on crab data. The article, however, also provides a conversion factor of 25 percent for shrimp. Thus, petitioner argues, if the Department continues to utilize the same source for the final results, an average of the wet-dry conversion factor for crab and shrimp shells, 27.5 percent, should be used. Lakebest et al. argue that petitioner has ignored the fact that Lakebest, Qingdao Rirong, Haiteng and Suqian have established that they each dry their shell scrap and, therefore, that the application of any wet-dry conversion ratio is inappropriate. Department Position: The Department agrees with petitioner's arguments that the wet-dry conversion factor should include both crab and shrimp shells, because the price quote for shells is in fact for both shrimp and crab shells. See Final Results NSR (9/99-9/00). The surrogate value and the conversion factor should ideally be on the same basis, because the values of various types of wet shells could be affected by their relative moisture content (i.e., wet crab shells could dry differently than wet shrimp shells). Therefore, for these final results, we have used the average of the conversion rates for crab and shrimp shells, 27.5 percent, to convert the dry-weight value of crab and shrimp shells to a wet-weight value. We disagree with Lakebest et al.'s argument that the application of any wet-dry conversion ratio is inappropriate for these four respondents. At most, Lakebest et al. dried their scrap only to the extent of leaving it out in the sun. See our position in Comment 13, below. Comment 12: Suggested Wet-Dry Weight Conversion Ratio of 50 Percent for Crawfish Scrap NN/LP argue that, for the final results, the Department should use a wet- dry conversion ratio of 50 percent, based on their November 1, 2001, submission. Petitioner argues that the 50 percent wet-dry weight conversion ratio for crawfish scrap suggested by NN/LP is not suitable because it is based on a patent for a process that is not typically used in chitosan production. The patent states that the normal methodology for producing chitosan involves "a process of grinding and demineralization with different acid solutions." However, the patent methodology used involves producing chitin through a mechanical process via an air classification procedure rather than through the normal chemical methodology used in the industry. Thus, petitioner argues, when the patent states that scrap is dried to a suitable moisture by removing 50 percent of the wet weight, it means a moisture suitable for this patented process, not the process normally employed in chitosan production. Petitioner contends that NN/LP's suggested ratio of 50 percent also does not represent the best available information on the record because it is limited to the United States. Petitioner concludes that it has provided evidence demonstrating that the wet-dry ratio experienced by a chitosan producer in India is 13.3 percent and because India is the primary surrogate country, the ratio it provided is more appropriate in this review. Department Position: NN/LP's suggested weight conversion factor is based on a statement in a website of Vincent Corporation, a designer and manufacturer of screw presses. A page from Vincent Corporation's website, included in Louisiana Packing Company's November 1, 2001, PAI submission, indicates that shrimp shells are comprised of 50 percent to 70 percent moisture; this would translate to a wet-dry conversion ratio of 30 percent to 50 percent for shrimp shells. While NN/LP advocate using the higher end of this ratio, 50 percent, the lower end, 30 percent, is close to the ratio for shrimp given in the S. Subasinghe article (see Comment 10, above)-i.e., 25 percent. However, the information submitted by respondents, unlike the S. Subasinghe article, does not include a wet-dry conversion ratio for crab shells. Because the scrap data are based on a combination of crab and shrimp shells, a wet-dry ratio on that same basis is preferable, as wet crab shells could dry differently than wet shrimp shells. Therefore, the Department applied an average conversion factor of 27.5 percent for these final results. Comment 13: Incorporation of a Wet-Dry Weight Conversion for Scrap for Lakebest Petitioner points out that the Department did not apply a wet-dry scrap conversion to Lakebest in the Preliminary Results because Lakebest's crawfish shells were dried in the sun; the Department instead deducted the entire by-product credit. See "Memorandum to File from Brett L. Royce; Analysis for the Preliminary Results of Review of Freshwater Crawfish Tail Meat from the People's Republic of China: Yangzhou Lakebest Co., Ltd.," dated October 1, 2001, at 2. Petitioner claims that the surrogate price quote, which is stated on a dry-weight basis, reflects a process more advanced than sun-drying, and that, therefore, a wet-dry conversion ratio must be applied to Lakebest's scrap in order to make an apples-to-apples comparison with the price quote for dried shell. Petitioner cites the "Memorandum to File from Doug Campau Re: Analysis for the Preliminary Results of Review of Freshwater Crawfish Tail Meat from the People's Republic of China: Qingdao Rirong Foodstuff Co., Ltd.," dated October 1, 2001 at 2, in which, petitioner claims, the Department expressly endorsed the application of a conversion ratio where shells were dried in the sun. Lakebest et al. argue that the Department's long-standing surrogate value methodology seeks to calculate a normal value for the NME respondents as if the NME were a market-economy country and the fact that Lakebest does not have a sophisticated drying process as the surrogate producer is irrelevant and contrary to Department practice. Lakebest et al. also state that the Department has specifically acknowledged that it is inappropriate to attempt to "customize the {surrogate} values to match the circumstances of the PRC producer." See Persulfates from the People's Republic of China: Final Results of Antidumping Duty Administrative Review, 64 FR 69494 (December 13, 1999) and accompanying Decision Memorandum at Comment 1 (citing Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China; Final Results of 1996- 1997 Antidumping Duty Administrative Review and New Shipper Review and Determination Not To Revoke Order in Part, 63 FR 63842, 63853 (November 17, 1998); and Certain Helical Spring Lock Washers From The People's Republic of China; Final Results of Antidumping Administrative Review, 61 FR 41994, 41999 (August 13, 1996)). Lakebest et al. claim that in the preamble to the Department's regulations, the Department stated that "we do not believe that it is appropriate to check surrogate value against the NME respondents' experience." Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27366 (May 19, 1997). Lakebest et al. argue the Department should continue to deduct the full by-product credit for Lakebest because the Department has determined that Lakebest's shells were dried. In addition, Lakebest submitted affidavits attesting to the fact that its shells were sold on a dry basis. Department Position: We agree, in part, with petitioner. The surrogate value for crawfish scrap is for scrap that has been dried through an industrial drying process, whereas Lakebest has stated that it dried its shells in the sun. The surrogate value represents dried and cleaned shells, which cannot be considered comparable to shells that are simply dried in the sun. We further note that, although another company reported that its scrap was dried naturally through exposure to sunlight, at verification we found that dripping wet shells were dumped into a courtyard, from where they were picked up daily. See "Administrative Review of Freshwater Crawfish Tail Meat from the People's Republic of China (A-570-848): Sales and Factors Verification of Qingdao Rirong Foodstuff Co., Ltd." at 11. Consequently, we concluded that Qingdao Rirong's scrap was sold on a wet basis, and applied a wet-to-dry conversion factor. Therefore, for the final results of review, the Department incorporated a wet-dry conversion factor for Lakebest, as well as for Suqian, Yancheng Haiteng and Qingdao Rirong; none of which dried their shells further than by leaving them in the sun. Comment 14: Suqian's Wet-Dry Conversion Petitioner alleges that the Department did not actually apply the wet-dry conversion ratio to the crawfish scrap credit as stated in the preliminary analysis memorandum. Petitioner states that this error should be corrected in the final results by applying the same wet-dry conversion ratio used for other respondents. Department's Position: We agree and have corrected this clerical error for these final results. Comment 15: Suqian and Yancheng Haiteng's Coal Freight Expense Suqian states that the Department failed in its Preliminary Results to convert from Indian rupees to U.S. dollars the per-unit surrogate trucking freight rate for the coal component of normal value as outlined in Suqian's analysis memorandum. As a result, Suqian argues, freight costs for transporting coal from Suqian's suppliers to its processing facility were overstated. Suqian argues that the Department should correct this error for the final results by applying the Indian rupees exchange rate to the freight cost for coal transport from Suqian's suppliers to its company's processing facility. Department's Position: We agree and we have corrected this clerical error for these final results. We have made this same correction for Yancheng Haiteng. Comment 16: Rescission of Review for Yancheng Foreign Trade, Ltd. (YFT) Fujian Pelagic et al. contend that, in the Preliminary Results, the Department improperly concluded that the absence of exports of subject merchandise during the POR would be a sufficient basis under the Department's regulations to rescind the review, as it does not address the issue of sales made before the POR but entered for consumption into the United States within the POR. Citing the Department's regulations at 19 CFR 351.213(d)(3), Fujian Pelagic et al. assert that the Department improperly interpreted the conditions of " . . . no entries, exports, or sales of subject merchandise" in the regulations as conjunctive, namely as "no entries, exports, and sales of subject merchandise." Fujian Pelagic et al. contend that, if this were the intended purpose of the Department's regulations that all three conditions were to be met to avoid a rescission, the regulations would explicitly state so. In addition, Fujian Pelagic et al. argue that the Department's interpretation is unreasonable, considering the long process involved in the sales transaction from production, shipment and receipt of the merchandise. Fujian Pelagic et al. state that the statute at section 751(a)(2)(A) requires the Department to "determine normal value and export price (or constructed export price) of each entry, and . . . the dumping margin for each such entry." Further, citing Helmerich & Payne, Inc., v. United States, 24 F Supp. 2d 304, 310 (1998) (Helmerich & Payne, Inc. v. United States), Fujian Pelagic et al. insist that the Department's policy and practice is to calculate dumping margins and assess duties on the entries of subject merchandise during the POR, and that "the Department is not time-limited in its election of a specific period for determining export price." Therefore, Fujian Pelagic et al. argue, the Department should not have rescinded the review. In addition, Fujian Pelagic et al. cite to Freshwater Crawfish Tail Meat From the People's Republic of China: Final Rescission of Antidumping Duty New Shipper Reviews, 66 FR 41831, 41831 (August 9, 2001) (Final Rescission New Shipper Review), in which the Department referred to the preamble to the Department's regulations, which states that "both the entry and the sale should occur during the POR, and that only under "appropriate" circumstances should the POR be extended when an entry is made after the POR." See Antidumping Duties; Countervailing Duties; Final rule, 62 FR 27296, 27319 (May 19, 1997) (Final Rule). Fujian Pelagic et al. conclude that the Department should apply the same principle to this review and calculate an antidumping margin for YFT based upon the sales it reported that entered during the current review period, even though those sales were already reported and reviewed in the prior POR. Fujian Pelagic et al. request clarification on the dumping margin applicable to these sales, i.e., whether the Department will apply the dumping margin it calculated for the previous review, or the PRC-wide rate for the current review. Petitioner disputes the claim of Fujian Pelagic et al. that the Department penalizes exporters which make sales in one period, but which enter the merchandise into the United States in another period, and points out that the Department reviews sales where invoice date and entry date are in different review periods. In addition, petitioner points out that none of the authorities cited by Fujian Pelagic et al. would require the Department to review the same sales twice. Department's Position: We disagree with Fujian Pelagic et al.'s assertion that we improperly rescinded the review with respect to YFT. In the Preliminary Results, the Department determined that YFT reported sales which the company had already reported, and the Department reviewed, during the previous POR. See "Memorandum to Barbara E. Tillman through Maureen Flannery from Elfi Blum: Freshwater Crawfish Tail Meat from the People's Republic of China (PRC): Yancheng Foreign Trade, Ltd. (YFT), formerly Yancheng Foreign Trade Corporation (YFTC): Intent to Rescind Administrative Review," dated September 24, 2001. Therefore, in the present administrative review, the Department had no sales upon which to calculate a dumping margin. Fujian Pelagic et al.'s argument, that its sales entered the United States in the current review period, does not change the fact that those sales were reported by YFT in the previous review period and, in the absence of entry dates,(1) included in the Department's calculation of YFT's dumping margin during the previous administrative review. Further, we agree with petitioner that neither the Act nor the Department's regulations require the Department to review the same sales in two consecutive reporting periods. If it were the Department's practice to review sales twice, then respondents could skew the dumping margin calculated by concentrating sales with lower-than- average margins on the cusps of two review periods, so they would be counted in the Department's calculations for two separate PORs. While the Department attempts to calculate weighted-average margins based on export price sales of merchandise entered during the POR (see Helmerich & Payne, Inc. v. United States, 24 F Supp. 2d 304, 310 (1998) where the Court of International Trade affirmed the Department's conclusion that respondent refused to report for the Department's margin calculation those sales which were made prior to the POR, but which entered the United States during the POR in question, and resorted to best information available), when there are no entry dates available, the Department reviews sales or shipments made during the POR, and applies the resultant margins to entries made during the POR for liquidation purposes. For a discussion on the issues of linking specific sales to entries of subject merchandise, please refer to the preamble to the Department's regulations. See Final Rule; see also American Silicon Technologies v. United States, 1999 Ct. Intl. Trade LEXIS 38 (April 9, 1999) (American Silicon Technologies v. United States) (affirming the Department's discretion of calculating a margin on sales made during the POR). Our regulations state that "on a case-by-case basis, the Department may consider whether the ability to link sales with entries should cause the Department to base a review on sales of merchandise entered during the period of review, rather than on sales that occurred during the period of review. . . . Because of the inability to tie entries to sales, the Department normally must base its review on sales made during the period of review." Moreover, the Court of International Trade has recognized in upholding the Department's assessment rate method that a review of sales, rather than entries, "appears not to be biased in favor of, or against, respondents." FAG Kugelfischer Georg Schafer KgaA v. United States, 1995 Ct. Int'l. Trade LEXIS 209, *10 (1995) aff'd ,1996 U.S. App. LEXIS 11544 (Fed. Cir. 1996); See also American Silicon Technologies v. United States, 1999 Ct. Intl. Trade LEXIS 38, *15 (1999) (affirming the Department's discretion in calculating a margin on sales made during the POR). Further, neither the Act nor the Department's regulations require the Department to review the same sales in two consecutive reporting periods. Concerning the liquidation of the entries previously reviewed, the unique circumstances of the situation allow the Department to liquidate the entries disregarded for this review's margin calculation based on the exporter/importer's most recently calculated margin. See 19 CFR 351.212(b)(1). For further details, see "Memorandum to File through Maureen Flannery from Elfi Blum: Freshwater Crawfish Tail Meat from the People's Republic of China: Yancheng Foreign Trade, Ltd. (YFT)-Liquidation of Entries During the September 1, 1999 through August 31, 2000 period," dated April 10, 2002. Comment 17: The Department's refusal to review certain sales of Huaiyin Foreign Trade Corporation (30) (Huaiyin 30) In its case brief of November 27, 2001, Fujian Pelagic et al. state that the Department refused to consider certain sales of subject merchandise because the sales were made in the prior review period, but did not enter until the current review period. Further, Fujian Pelagic et al. request clarification on whether the importer-specific margin of the previous review covering the period September 1, 1998, through August 31, 1999, or of the current review covering the period September 1, 1999, through August 31, 2000, will be applied to those sales. Fujian Pelagic et al. point out that, for its sales of subject merchandise in the current review period, it reported the factors of production from the previous review period. Fujian Pelagic et al. argue that, of the six total sales reported for the current review period, Huaiyin 30 reported four sales in the previous POR because it expected those four sales to enter the United States within the 1998-1999 POR, and not, as they actually did, in the current period. Fujian Pelagic et al. argue that it expected the remaining two sales to enter the United States in the subsequent period of review, and therefore did not report them in the 1998-1999 period. Fujian Pelagic et al. state that the Department disregarded the four sales in the preliminary results of this review and based its margin calculation solely on the two sales it did not report in the previous review period. Therefore, Fujian Pelagic et al. request clarification regarding the importer-specific margin for assessment of duties on its four sales. Petitioner disputes the claim of Fujian Pelagic et al. that the Department penalizes exporters which make sales in one period, but which enter the merchandise into the United States in another period, and points out that the Department reviews sales where invoice date and entry date are in different review periods. In addition, petitioner points out that none of the authorities cited by Fujian Pelagic et al. would require the Department to review the same sales twice. Department's Position: In the Preliminary Results, the Department determined that four of the total six sales that Huaiyin 30 reported for the current POR had already been reported by the company, and reviewed by the Department in the preceding administrative review. The other four sales were made by Huaiyin 30 during the previous review period, and the merchandise entered the United States during the current review period. Since Huaiyin 30 did not report the entry dates for those sales, we calculated a margin for those sales in our previous administrative review. Therefore, the Department used only the remaining two sales that Huaiyin 30 reported to calculate a dumping margin for the current review. Further, we agree with petitioner that neither the Act nor the Department's regulations require the Department to review the same sales in two consecutive reporting periods. If it were the Department's practice to review sales twice, then respondents could skew the dumping margin calculated by concentrating sales with lower-than-average margins on the cusps of two review periods, so they would be counted in the Department's calculations for two separate PORs. While the Department attempts to calculate weighted average margins on export price sales of merchandise entered during the POR (see Helmerich & Payne, Inc. v. United States, 24 F Supp. 2d 304, 310 (1998) where the Court of International Trade affirmed the Department's conclusion that respondent refused to report those sales for the Department's margin calculation, which were made prior to the POR, but which entered the United States during the POR in question, and resorted to best information available), when there are no entry dates available, the Department reviews sales or shipments made during the POR, and applies the resultant margins to entries made during the POR for liquidation purposes. For a discussion on the issues of linking specific sales to entries of subject merchandise, please refer to the preamble to the Department's regulations. See (Final Rule); see also American Silicon Technologies v. United States, 1999 Ct. Intl. Trade LEXIS 38 (April 9, 1999) (American Silicon Technologies v. United States) (affirming the Department's discretion of calculating a margin on sales made during the POR). Our regulations state that "on a case-by-case basis, the Department may consider whether the ability to link sales with entries should cause the Department to base a review on sales of merchandise entered during the period of review, rather than on sales that occurred during the period of review. . . . Because of the inability to tie entries to sales, the Department normally must base its review on sales made during the period of review." Moreover, the Court of International Trade has recognized in upholding the Department's assessment rate method that a review of sales, rather than entries, "appears not to be biased in favor of, or against, respondents." FAG Kugelfischer Georg Schafer KgaA v. United States, 1995 Ct. Int'l. Trade LEXIS 209, *10 (1995) aff'd ,1996 U.S. App. LEXIS 11544 (Fed. Cir. 1996); See also American Silicon Technologies v. United States, 1999 Ct. Intl. Trade LEXIS 38, *15 (1999) (affirming the Department's discretion in calculating a margin on sales made during the POR). Further, neither the Act nor the Department's regulations require the Department to review the same sales in two consecutive reporting periods. As we stated above, if Commerce were to review sales twice, that could skew the weighted-average dumping margins. Therefore, for these final results, we have calculated a margin based upon sales of subject merchandise that were sold the to United States during the current POR and which Huaiyin 30 did not previously report to the Department. When liquidating POR entries on an exporter/importer specific basis, we will liquidate the entries disregarded for this review's margin calculation based on the exporter/importer's most recently calculated margin. See 19 CFR 351.212(b)(1). For further details, see "Memorandum to File through Maureen Flannery from Elfi Blum: Freshwater Crawfish Tail Meat from the People's Republic of China: Huaiyin Foreign Trade Corporation (30) (Huaiyin 30)-Liquidation of Entries During the September 1, 1999 through August 31, 2000 period," dated April 10, 2002. Comment 18: Whether the Department improperly determined that Fujian Pelagic Fishery Group Co. (Fujian Pelagic) and Pacific Coast Fisheries Corp. (Pacific Coast) are not affiliated parties In its response to the Department's questionnaire, Fujian Pelagic reported that it was affiliated with a U.S. importer of the subject merchandise, Pacific Coast. In the preliminary results of this review, we found that evidence on the record did not support this claim of affiliation. Fujian Pelagic et al. argue that the Department has failed to adequately consider the record evidence with respect to whether Fujian Pelagic and Pacific Coast are affiliated parties. Fujian Pelagic et al. maintain that they submitted documentary evidence to support their claim that Fujian Pelagic and Pacific Coast are affiliated, including a memorandum of understanding between Fujian Pelagic and Pacific Coast which outlines the specifics of Fujian Pelagic's investment. Fujian Pelagic et al. maintain that Fujian Pelagic has fulfilled its equity obligations per this memorandum of understanding, and that there is irrefutable evidence on the record of this review that Fujian Pelagic's investment in Pacific Coast actually occurred. See Fujian Pelagic's July 23, 2001, submission at Exhibit S-2. Fujian Pelagic et al. note that in section A of its questionnaire response, Fujian Pelagic submitted documentation regarding the formation of Pacific Coast, including the initial percentages of ownership for each of the investors (Mr. Zhang Wei, Fujian Pelagic, and three of Mr. Wei's personal friends). As later explained by Fujian Pelagic and Pacific Coast in a supplemental questionnaire response, Mr. Wei has since taken control of additional shares, while Fujian Pelagic still retains a percentage of ownership. See Fujian Pelagic's July 23, 2001, submission at 4 and Exhibit S-3. Fujian Pelagic et al. also explain that Pacific Coast also amended its articles of incorporation to reduce the par value of each share of its stock. See Fujian Pelagic's July 23, 2001, submission at Exhibit S-3. Fujian Pelagic et al. state that this amendment effectively halved the dollar amount required for any investor to own one share of stock. Fujian Pelagic et al. contend that the fact that Fujian Pelagic holds a certain percentage of Pacific Coast's voting stock places Fujian Pelagic legally and operationally in a position to exercise direction and control over Pacific Coast. Fujian Pelagic et al. maintain that under the statute, this is sufficient evidence of affiliation between the two companies. Additionally, Fujian Pelagic et al. state that Fujian Pelagic has a member on the Board of Directors of Pacific Coast, and that, in such capacity, Fujian Pelagic is involved in all key decision making matters of Pacific Coast. Fujian Pelagic et al. note that Fujian Pelagic's president and general manager serves as the vice president of Pacific Coast. Thus, Fujian Pelagic et al. argue, Fujian Pelagic is legally and operationally in a position to exercise direction and control over Pacific Coast. Fujian Pelagic et al. also argue that the record reflects the unique nature of Fujian Pelagic's investment in Pacific Coast, stating that while Fujian Pelagic has never made a cash investment in Pacific Coast, it has endorsed a promissory note in favor of Pacific Coast for its equity stake in the company. Fujian Pelagic et al. further claim that Fujian Pelagic delivered merchandise to Pacific Coast in partial settlement of its equity stake in Pacific Coast. See Fujian Pelagic's July 23, 2001, submission at Exhibit S-2. Fujian Pelagic et al. state that this merchandise was sold, and the proceeds of such sale were deposited in Pacific Coast's account as payment pursuant to the promissory note for Fujian Pelagic's shares in Pacific Coast. Fujian Pelagic et al. claim that such payment, by itself, meets the affiliated persons provision of section 771(33)(E) of the Act (i.e., "[a]ny person directly or indirectly owning, … or holding with power to vote, 5 percent or more of the outstanding voting stock … of any organization and such organization" "shall be considered to be 'affiliated' or 'affiliated persons'."). Fujian Pelagic et al. argue that Fujian Pelagic has already met this requirement, and the record shows that it is entitled to a certain percentage of Pacific Coast's equity. Pursuant to this promissory note, Fujian Pelagic et al. note, Fujian Pelagic is obligated to make further payment on its indebtedness by means of shipments of merchandise to Pacific Coast. In consideration of this promissory note in favor of Pacific Coast, Fujian Pelagic et al. state that Fujian Pelagic presently holds and has the right to vote its shares and exercise certain control over the sales and business activities of Pacific Coast. Moreover, Fujian Pelagic et al. note, under Washington state law, a promissory note itself can serve as adequate consideration for stock ownership. Fujian Pelagic et al. maintain that the facts on the record should be sufficient to evidence affiliation between Fujian Pelagic and Pacific Coast under the statute. However, Fujian Pelagic et al. state that, in response to the Department's further inquiry as to whether Fujian Pelagic had actually paid in capital prior to or during the POR, Fujian Pelagic submitted documentation on the record demonstrating that it had arranged for a trade in goods with Pacific Coast during the period of review. Fujian Pelagic et al. state that this documentary evidence includes a memorandum of understanding between Fujian Pelagic and Pacific Coast, wherein Fujian Pelagic agreed to deliver to Pacific Coast some merchandise in partial settlement of its full equity position in the company. Fujian Pelagic and Pacific Coast also submitted a copy of the purchase order taken by Pacific Coast from its U.S. customer for the purchase of the merchandise purportedly provided by Fujian Pelagic. Moreover, Fujian Pelagic et al. add that the record also includes copies of the invoice/packing list from Pacific Coast's customer for this merchandise, the check made payable to Pacific Coast from its U.S. customer for this merchandise, and Pacific Coast's bank statement indicating a deposit of such funds in its account. Fujian Pelagic et al. state that both the purchase order and the invoice/packing list provided by these parties reflect the shipment of the merchandise at issue. See Fujian Pelagic's July 23, 2001, submission at Exhibit S-2. For the record, Fujian Pelagic et al. note that the volume of the trade-in-kind shipment from Fujian Pelagic evidenced by the memorandum of understanding is virtually the same amount of merchandise sold thereafter by Pacific Coast to its U.S. customer. Fujian Pelagic et al. add that the amounts differ by only one percent, and any slight difference in the amounts shipped can reasonably be attributed to packing or other mechanical variations. Fujian Pelagic et al. argue that the Department offers no evidence whatsoever to contradict the parties' certified representations and documentary evidence on the issue of affiliation and common control. In fact, Fujian Pelagic et al. argue that the Department chose not to verify Pacific Coast during this review period and, therefore, has no basis to contradict the factual evidence and certified statements in Fujian Pelagic's/Pacific Coast's questionnaire responses. Fujian Pelagic et al. state that while they have submitted such certified and direct evidence, the Department simply stated that it was unable to accept the response of the parties and offers no further explanation of its decision. Fujian Pelagic et al. contend that this is manifestly unfair, especially in light of the failure to verify the questionnaire responses of Fujian Pelagic or Pacific Coast. Regarding the issue the Department raised concerning the remainder of the equity position in Pacific Coast by Fujian Pelagic, Fujian Pelagic et al. note that the terms of the promissory note permit a two-year period for Fujian Pelagic to complete the terms of its indebtedness to Pacific Coast. Since the period of this review is September 1, 1999, through August 31, 2000, Fujian Pelagic et al. note that this left nearly an entire year outside the period of review, or until August 18, 2001, for Fujian Pelagic to complete its debt payment to Pacific Coast. Fujian Pelagic et al. state that since the Department never asked for documentation to demonstrate Fujian Pelagic's further installment payments at any point following the period of review, the record naturally lacks information regarding the remainder of Fujian Pelagic's investment. Fujian Pelagic et al. state that the Department itself concedes that affiliation is established by the statute at a certain level of equity ownership without regard to considerations of control. Thus, Fujian Pelagic et al. contend, Fujian Pelagic's documented trade-in-merchandise as partial payment for its equity investment in Pacific Coast is sufficient to establish affiliation under the statute. Fujian Pelagic et al. also argue that Fujian Pelagic is affiliated with Pacific Coast by virtue of company control under section 771(33)(G) of the Act. In this regard, Fujian Pelagic et al. note that Congress amended the "affiliated persons" provision of the statute to add new subparagraph (G), which provides that "any person who controls any other person and such other person" will be considered affiliated persons. Statement of Administrative Action (SAA) accompanying the Uruguay Round Agreements Act (URAA), H.R. Rep. No. 103-316 at 838 (1994). Fujian Pelagic et al. maintain that in the preliminary results, the Department suggests that only cash can satisfy an investment in a company and that cash is the only reason that shares are given to stockholders. However, Fujian Pelagic et al. state, in many cases shares of a corporation are given for reasons other than cash investment: technical "know-how," managerial ability, cash financing, and promissory notes may serve as proper consideration for shares in a company. Fujian Pelagic et al. conclude that although "cash may be king," it is not the only way that an owner obtains and "holds" shares and exercises direction over a corporation. Petitioners contend that Fujian Pelagic et al. have failed to demonstrate that the Department's decision to treat Fujian Pelagic and Pacific Coast as unrelated parties was improper. Petitioners state that the issue is not whether "cash is king," but whether or not Fujian Pelagic actually acquired some portion of Pacific Coast's equity at some point during, or prior to, the POR. Petitioner argues that the Department has acted properly in looking for actual, meaningful transactions within the relevant period, and that Fujian Pelagic et al. do not satisfy this requirement by alleging in their case brief that they could have, if asked, provided evidence of further transactions occurring after the end of the POR. Department's Position: As we noted in the Department's October 1, 2001, memorandum entitled "Analysis of the Relationship between Fujian Pelagic Fishery Group Co. (Fujian Pelagic) and Pacific Coast Fisheries (Pacific Coast)," there is no documentary evidence on the record showing that Fujian Pelagic made an equity investment of any type in Pacific Coast, or that Fujian Pelagic and Pacific Coast are under common control by virtue of a shared board member. In our supplemental questionnaire, we specifically asked Fujian Pelagic to provide any documentation to demonstrate that it had actually paid in capital to Pacific Coast prior to or during the POR. See question 3a.(1) of the Department's July 9, 2001, supplemental questionnaire. The only documentation submitted by Fujian Pelagic et al. that relates to Fujian Pelagic's claimed investment in Pacific Coast is for the sale from Pacific Coast to a seafood broker in the United States. That documentation consisted of the following: the invoice/packing list from Pacific Coast to the seafood broker, a purchase order from the seafood broker, and proof of payment from the seafood broker to Pacific Coast. See Fujian Pelagic's July 23, 2001, submission at Exhibit S-2. This document trace represents only the U.S. portion of the purported investment via merchandise from Fujian Pelagic to Pacific Coast. There is no documentation on the record showing that the merchandise originated from Fujian Pelagic (i.e., packing list, bill of lading, export/entry documentation, etc.). Fujian Pelagic et al.'s contention that the volume and value of the sale from Pacific Coast to the seafood broker is similar to the amount referenced in the memorandum of understanding between Fujian Pelagic and Pacific Coast offers no proof of any investment by Fujian Pelagic in Pacific Coast. Additionally, the documentary evidence submitted by Fujian Pelagic et al. does not indicate when the merchandise at issue entered into the United States. For further discussion of this issue involving business proprietary information, refer to the April 10, 2002, memorandum entitled "Analysis of Evidence on the Record Regarding the Relationship between Fujian Pelagic Fishery Group Co. (Fujian Pelagic) and Pacific Coast Fisheries (Pacific Coast)" (Fujian Pelagic-Pacific Coast Memo). Contrary to Fujian Pelagic et al.'s claim, we are not suggesting that an investment must necessarily be made in cash. Rather, we are making a specific determination that the facts on the record of this case do not indicate that an investment has been made. We disagree with Fujian Pelagic et al.'s claim that, having chosen not to verify Fujian Pelagic or Pacific Coast, the Department has no basis to contradict the factual evidence and certified statements in the questionnaire responses submitted to the Department by Fujian Pelagic and Pacific Coast. A decision not to verify does not obligate the Department to agree with every statement or argument of a respondent without question. Furthermore, we are not refuting the accuracy or authenticity of the documentation submitted by Fujian Pelagic/Pacific Coast. However, we do find that the evidence does not support the claim of affiliation between Fujian Pelagic and Pacific Coast. For example, we are not questioning the documented sale from Pacific Coast to a seafood broker. Rather, there is no documented connection which ties that sale to the shipment from Fujian Pelagic that purportedly represents Fujian Pelagic's investment in Pacific Coast. We find that there is no evidence on the record to support Fujian Pelagic's contention that it made an investment in Pacific Coast either in cash or in merchandise. Furthermore, it should be noted that even if we were to reach the conclusion that Fujian Pelagic did acquire a portion of Pacific Coast's equity during the POR through the purported shipment of merchandise, the amount of such investment would be insufficient to meet the five percent threshold under section 771(33)(E) of the Act. See Fujian Pelagic-Pacific Coast Memo. As to respondent's contention that Fujian Pelagic is in a position to exercise control over Pacific Coast because its president and general manager serves as vice president of Pacific Coast, for the reasons discussed in the Fujian Pelagic-Pacific Coast Memo, we find that this fact does not provide a sufficient basis to conclude that Fujian Pelagic and Pacific Coast are under common control. Absent any other evidence on the record, we cannot conclude that there is any sort of control relationship, or potential for control, between Fujian Pelagic and Pacific Coast. Therefore, we continue to find that Fujian Pelagic and Pacific Coast are not affiliated parties for these final results of administrative review. Comment 19: Whether the Department improperly applied facts available to Yancheng Yaou Seafood Co., Ltd. (Yancheng Yaou) In their January 22, 2001, responses to section A of the Department's questionnaire, Qingdao Zhengri Seafood Co., Ltd. (Qingdao Zhengri) and Yancheng Yaou reported that they shared a common owner, and consolidated their volume and value information in Yancheng Yaou's response. The companies then submitted a consolidated response to sections C and D of the Department's questionnaire on June 7, 2001. On August 3, 2001, Qingdao Zhengri stated that it would not participate in verification. For the preliminary results, we determined that Qingdao Zhengri and Yancheng Yaou constituted a single entity, and applied adverse facts available to the combined entity since a portion of the consolidated response could not be thoroughly verified. Fujian Pelagic et al. contend that the Department did not have a sufficient basis upon which to apply adverse facts available to Yancheng Yaou. Fujian Pelagic et al. state that Qingdao Zhengri is a Chinese exporter of subject merchandise, and Yancheng Yaou is a Chinese exporter and producer of the subject merchandise. Fujian Pelagic et al. note that Qingdao Zhengri and Yancheng Yaou submitted a consolidated response to sections C and D of the Department's questionnaire because Yancheng Yaou and Qingdao Zhengri had a common owner. See, e.g., Yancheng Yaou's January 23, 2001, section A submission. On August 3, 2001, respondent Qingdao Zhengri informed the Department that it would not participate in a verification of its questionnaire responses. See Qingdao Zhengri's and Yancheng Yaou's August 3, 2001, letter to the Department. However, Fujian Pelagic et al. argue that Yancheng Yaou made very clear that it would participate in the Department's verification. Id. Fujian Pelagic et al. state that the Department preliminarily determined that because QingdaoZhengri would not permit verification of its questionnaire responses, the whole consolidated response submitted by these parties was "unverifiable." Therefore, Fujian Pelagic et al. state, the Department applied facts available to both Qingdao Zhengri and Yancheng Yaou. Fujian Pelagic et al. note that certain of Yancheng Yaou's sales were also sourced from three other processors that were not verified. Fujian Pelagic et al. contend that Yancheng Yaou acted to the best of its ability to cooperate with the Department's information requests. Fujian Pelagic et al. argue that Yancheng Yaou never willfully withheld any information from the Department, responded to all the questionnaires and information requests of the Department, and offered to make available all of the company books and records to the Department at verification. Fujian Pelagic et al. contend that at no point in time did Yancheng Yaou deliberately withhold information from the Department or impede its investigation. Fujian Pelagic et al. argue that the statute requires the Department to meet a very high standard before it can make an adverse inference. That principle, state Fujian Pelagic et al., incorporated in section 776(b) of the Act, directs the Department to take an adverse inference only where it can determine 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 Department. Fujian Pelagic et al. argue that the Department's simple assertion that Yancheng Yaou "did not cooperate by acting to the best of its ability in complying with the Department's requests for information" is an insufficient basis to apply adverse facts available. Fujian Pelagic et al. argue that the law requires that the interested party must refuse to provide the necessary information or significantly impede the final determination, and that Yancheng Yaou's conduct does not meet this standard. Fujian Pelagic et al. contend that the Department must provide a reasoned analysis based on substantial evidence on the record as to why it has determined that Yancheng Yaou did not act to the best of its ability. Moreover, Fujian Pelagic et al. state that the Department must establish a willful decision on the part of an interested party to not comply with the Department's requests for information. Fujian Pelagic et al. note this principle was discussed at length in a recent opinion from the Court of International Trade in Nippon Steel Corp. v. U.S., Slip Op. 00-137 (Oct. 26, 2000): Commerce must reach its finding through a reasoned inquiry into the facts. "{I}t is not sufficient for Commerce to simply assert this legal standard {not acting to the best of ability} as its conclusion or repeat its finding concerning the need for facts available." Mannesmann, 77 F. Supp. 2d at 1313. Accord Ferro Union, 44 F. Supp. 2d at 1330 ("{M}ere recitation of the relevant standard is not enough for Commerce to satisfy its obligation under the statute.") (citations omitted). Nor may Commerce rest its finding on mere suspicions or "vague hints." Mannesmann, 77 F. Supp. 2d at 1317 (quoting Borden, 4 F. Supp. 2d at 1246-47). In order for its finding to be supported by substantial evidence, "Commerce needs to articulate why it concluded that a party failed to act to the best of its ability, and explain why the absence of this information is of significance to the progress of its investigation." Mannesmann, 77 F. Supp. 2d at 1313-14 (citation omitted). Accord Ferro Union, 44 F. Supp. 2d at 1331 (remanding because "Commerce ha{d} not pointed to substantial evidence" to show that respondent's failure to provide requested information "was a failure by {respondent} to comply to the best of its ability")…. Commerce must also find either a willful decision not to comply or behavior below the standard for a reasonable respondent. Insufficient attention to statutory duties under the unfair trade laws is sufficient to warrant adverse treatment. It implies an unwillingness to comply or reckless disregard of compliance standards. Id. at 25, 26, and 29. Fujian Pelagic et al. note that Chinese crawfish processors like Yancheng Yaou are small, unsophisticated companies, and argue that these companies should not be measured by the same standards applied to large multinational corporations, especially where such companies have not willfully withheld data from the Department and have attempted to the best of their ability to provide the information requested by the Department. As indicated above, Fujian Pelagic et al. note that the the Department is required to find a willful failure to disobey a request for information before the Department may apply an adverse inference. In support of their argument, Fujian Pelagic et al. quote from Borden Inc. v. U.S., 4 F. Supp. 1221, 1245 (CIT 1998): Under the new statutory scheme, 19 U.S.C. § 1677m is designed to prevent the unrestrained use of facts available as to a firm which makes its best effort to cooperate with the Department. This section was enacted, as part of the URAA, Pub.L. 103-465 § 231, to implement portions of Annex II to the AD Agreement, which provides, in part, that information which "may not be ideal" should not be disregarded if the party "has acted to the best of its ability." Fujian Pelagic et al. argue that since the purpose of the antidumping law is remedial in nature, it is the Department's duty to determine a dumping margin as accurately as possible. NTN Bearing Corp. v. United States, 74 F.3d 1204 (Fed. Cir. 1995) (citing Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed. Cir. 1990), and Chaparral Steel Co. v. United States, 901 F.2d 1097, 1103-1104 (Fed. Cir. 1990)). Fujian Pelagic et al. contend that Yancheng Yaou acted to the best of its ability in cooperating with the Department's information requests and made very clear that it would fully participate in the Department's verification process, and conclude that the Department should not apply an adverse inference. Fujian Pelagic et al. argue that the evidence on the record does not justify the application of a punitive "PRC-wide Rate" rate to all Yancheng Yaou's sales of subject merchandise. In support of their argument, Fujian Pelagic quotes a statement from the Federal Circuit in F.Lli De Cecco Di Filippo Fara S. Martino v. United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000) (De Cecco): It is clear from Congress's imposition of the corroboration requirement in 19 U.S.C. § 1677e(c) that it intended for an adverse facts available rate to be a reasonably accurate estimate of the respondent's actual rate, albeit with a built-in increase intended as a deterrent to non-compliance. Congress could not have intended for Commerce's discretion to include the ability to select unreasonably high rates with no relationship to the respondent's actual dumping margin. Thus, Fujian Pelagic et al. argue that the Department failed to corroborate the PRC-wide rate as it applies to Qingdao Zhengri/Yancheng Yaou. Petitioner contends that since they withdrew their request for review with respect to Yancheng Yaou, and since Yancheng Yaou did not file its own request for review of its entries during the POR, the Department correctly applied the PRC-wide rate. Department's Position: We disagree with Fujian Pelagic et al. We also note that, contrary to petitioner's claim, Yancheng Yaou did in fact request a review of its entries of subject merchandise for this POR. Fujian Pelagic et al. do not contest the Department's determination that Yancheng Yaou and Qingdao Zhengri should be treated as one entity. Yancheng Yaou and Qingdao Zhengri submitted a consolidated response to sections C and D of the Department's questionnaire. Thus, these companies reported themselves to the Department as a single entity, and there is clear evidence on the record thay they should be considered a single entity. Since Yancheng Yaou and Qingdao Zhengri constitute a single entity, we cannot calculate a separate dumping margin for a portion of a respondent's sales. After the Department received a letter from Qingdao Zhengri on August 3, 2001, indicating that it would not submit to verification, the Department issued Qingdao Zhengri/Yancheng Yaou a letter indicating that it would not be possible for the Department to verify only part of the companies' consolidated response. See Letter to Qingdao Zhengri and Yancheng Yaou dated August 7, 2001, at 1. The Department pointed out in the August 7, 2001, letter, in response to Qingdao Zhengri's refusal to submit to verification, that if a company objects to verification, the Department will not conduct verification and may disregard any or all information submitted by the company in favor of the use of the facts available, in accordance with section 776(a)(2)(D) of the Act. Qingdao Zhengri/Yancheng Yaou never responded to the Department's letter, and made no subsequent efforts to contact or arrange verification with the Department. Since Qingdao Zhengri did not allow Commerce to verify its questionnaire responses, we resorted to the use of facts otherwise available. Moreover, the Department found that Qingdao Zhengri/Yancheng Yaou failed to cooperate to the best of its ability pursuant to section 776(b) of the Act. See Preliminary Results, 66 FR at 52103. Because Qingdao Zhengri/Yancheng Yaou refused to submit to verification, a significant portion of the information, including sales and production data, that was in the sole possession of Qingdao Zhengri could not be verified. Thus, in resorting to the use of facts otherwise available, the Department applied adverse facts available because respondent Qingdao Zhengri/Yancheng Yaou failed to cooperate to the best of its ability. Fujian Pelagic et al. argue that because the Department chose not to verify Yancheng Yaou, the Department has no basis for rejecting the information it submitted and relying on adverse facts available. Their argument is not supported by evidence on the record, as discussed above. Further, we note a significant inconsistency between information contained in Fujian Pelagic et al.'s case brief and in Yancheng Yaou/Qingdao Zhengri's responses to section A of the Department's questionnaire. On page 17 of their case brief, Fujian Pelagic et al. state that certain of Yancheng Yaou's sales which were sourced from three other processors were not verified. That statement stands in stark contrast to both Qingdao Zhengri's and Yancheng Yaou's answer to question 9.a. from section A of the Department's questionnaire, which asks respondents to provide the names, addresses, and facsimile numbers of those companies that supplied them with the merchandise under administrative review that they sold to the United States. See the Department's December 5, 2000, Questionnaire. The response we received was, "the crawfish was produced by either Yaou or Qingdao Zhengri." See Yancheng Yaou's January 22, 2001 section A response at 17 and Qingdao Zhengri's January 22, 2001, section A response at 15. Because the information was within the control of Qingdao Zhengri/Yancheng Yaou, and Qingdao Zhengri/Yancheng Yaou refused verification, the Department could not ascertain the veracity of their submitted questionnaire responses. Thus, we continue to find that the Qingdao Zhengri/Yancheng Yaou entity did not cooperate by acting to the best of its ability in complying with the Department's requests for information, and that the application of adverse facts available is therefore warranted for Qingdao Zhengri/Yancheng Yaou for these final results. We do not agree with Fujian Pelagic et al.'s argument that the PRC-wide rate was not corroborated with respect to Qingdao Zhengri/Yancheng Yaou's sales of subject merchandise during the POR. In support of its argument that the PRC-wide rate is not corroborated, Fujian Pelagic et al. cite to De Cecco, but that case is inapposite. De Cecco does not substantiate Fujian Pelagic et al.'s claim that the highest calculated dumping margin on the record of the administrative review must be corroborated with respect to individual respondents. In De Cecco, the Department conceded that the petition rate was not properly corroborated in the original determination, but argued that the trial court erred in not remanding the case to the Department under instructions that would allow it to corroborate the petition rate with further evidence or to select any other proper rate. In addition, the Department argued that the trial court erred in refusing to reconsider the petition rate in light of the corroborating evidence cited in the Department's remand determination. De Cecco, 216 F.3d at 1031. The appellate court's reference to the corroboration requirement was made in the context of explaining that the Department's discretion in selecting adverse facts that will create the proper deterrent to non-cooperation with its investigations and assure a reasonable margin is not unbounded. De Cecco 216 F.3d at 1032. Here, the Department determined the rate used for adverse facts available based upon information obtained in the course of the review. Therefore, the rate need not be corroborated. See, e.g., section 776(c) of the Act. Given that Qingdao Zhengri/Yancheng Yaou failed to allow verification of its consolidated response, we determine that the application of the PRC-wide rate as adverse facts available is warranted. Thus, for these final results, we continue to find that Yancheng Yaou and Qingdao Zhengri constitute a single entity. Qingdao Zhengri's refusal to participate in verification demonstrates an unwillingness to fully cooperate with the Department, pursuant to section 776(b) of the Act, as discussed above. As such, we have no other option but to apply adverse facts available to the Yancheng Yaou/Qingdao Zhengri entity. Comment 20: Single Rate for Huaiyin 5 and Ningbo Nanlian Huaiyin Foreign Trade Corporation (5) (Huaiyin 5) (known as Jiangsu Hilong International Trading Company Ltd., as of January 10, 2001) argues that the Department incorrectly determined that it and NN/LP should receive a single antidumping rate. Huaiyin 5 contends that the test that served as the basis of the Department's prior decision on this issue is not met in this review. In past administrative reviews, the Department has stated the following: "In the 1997/1998 administrative review, the Department determined that the export operations of NN/LP and Huaiyin 5 were intertwined such that the two companies appeared to be under common control and should receive a single antidumping duty rate. . . . Specifically, the Department found that the nature of the relationships between Huaiyin 5 and NN/LP constituted a web of control relationships such that prices and exports were subject to significant manipulation." Preliminary Results, 66 FR at 52102. According to Huaiyin 5, though the Department found what it deemed to be "continuing relationships" in the current segment of the proceeding, those "relationships" cannot reasonably be interpreted to be "web of control relationships" such that "prices and exports were subject to significant manipulation." According to Huaiyin 5, in the current segment, the Department stated the following with respect to "continuing relationships": "Furthermore, as noted in the verification report concerning these entities, while conducting verification, the Department found evidence of a continuing commercial relationship between NN/LP and Huaiyin 5, as well as evidence of a continuing business relationship between Mr. Wei Wei and both Huaiyin 5 and NN/LP (by virtue of Mr. Wei Wei's dealings with Louisiana Packing Company, which is the U.S. owner in the Ningbo Nanlian joint-venture)." Preliminary Results, 66 FR at 52102. According to Huaiyin 5, the Department found that Mr. Wei Wei has a continuing "business relationship" with both NN/LP and Huaiyin 5. However, Huaiyin 5 states that it is perplexed as to how these relationships have anything to do with finding these two entities under common control. According to Huaiyin 5, there is no basis in law for the Department to determine that a business relationship is sufficient for finding a control relationship. In Huaiyin 5's opinion, one would expect that the related activities would have to have some connection to the subject merchandise. According to Huaiyin 5, a relationship must have some impact (potential or real) to influence the parties. Thus, Huaiyin 5 argues, it is crucial to understand exactly what Mr. Wei Wei's referenced relationships were. Huaiyin 5 notes that in the Preliminary Results, the Department references the "Memorandum from Edward C. Yang to Joseph A. Spetrini: Relationship of Ningbo Nanlian Frozen Foods Company, Ltd. and Huaiyin Foreign Trade Corporation (5)," ("NN/H5 Memorandum") dated April 7, 2000, and states that the verification report entitled "Antidumping Review of Freshwater Crawfish Tail Meat (tail meat) from the People's Republic of China (PRC) (A-570-848): Sales and Factors Verification Report for Ningbo Nanlian Frozen Foods Co., Ltd. and Huaiyin 5," dated September 28, 2001 ("NN/H5 Verification Report"), discusses Mr. Wei Wei's involvement with NN/LP and Huaiyin 5, up to and including the 1997-1998 administrative review period, in detail. According to Huaiyin 5, there is nothing on the record with respect to Mr. Wei Wei's involvement with either company during the 1998-1999 review. With respect to NN/LP, Huaiyin 5 asserts, the "NN/H5 Verification Report" issued in the current proceeding segment clearly reflects that Mr. Wei Wei had absolutely nothing to do with NN/LP during the POR: he is not on its business license, he is not an officer or employee of NN/LP, and he had no interaction with NN/LP with respect to the subject merchandise. In Huaiyin 5's opinion, the only connection that Mr. Wei Wei had with NN/LP is very circuitous. According to Huaiyin 5, during the POR, Mr. Wei Wei assisted the owner of Louisiana Packing with shrimp-but there was no connection with the subject merchandise. Huaiyin 5 argues that the assistance with non-subject merchandise afforded to the minority owner of NN/LP by Mr. Wei Wei does not constitute a relevant business relationship providing Mr. Wei Wei with the potential ability to manipulate prices or exports of the subject merchandise. Huaiyin 5 also notes that, with respect to its own participation in verification, the "NN/H5 Verification Report" reflects that during the period of review, Huaiyin 5 paid certain hotel expenses of Mr. Wei Wei. However, Huaiyin 5 also notes that the "NN/H5 Verification Report" reflects the fact that Huaiyin 5 had no sales of crawfish during the period of review. Therefore, Huaiyin 5 argues, regardless of the reasons why Huaiyin 5 was paying certain expenses of Mr. Wei Wei, they could not have reflected activities related to the sale and/or export of subject merchandise to the U.S., and that, consequently, any such activity is legally irrelevant. According to Huaiyin 5, during the POR, the only connection between Ningbo Nanlian and Huaiyin 5 was tenuous at best. In Huaiyin 5's opinion, the "NN/H5 Verification Report" confirms that there were no monies or goods transferred between theses two entities. Huaiyin 5 argues that, given the fact that there were no business transactions, it is unlawful to find a web of controlling relationships, or even a strand. Huaiyin 5 points out that in the Preliminary Results, the Department states the following with respect to information on the record of the current proceeding: "On May 22, 2001, Huaiyin 5 submitted a letter to the Department stating, in part, that Huaiyin 5 "is entitled to a separate rate." However, again the Department has not been provided with new information or evidence of circumstances in the current review that differ sufficiently from circumstances in the prior reviews to warrant any reconsideration of the relationship between NN/LP and Huaiyin 5." Preliminary Results, 66 FR at 52102. Huaiyin 5 asserts that the questionnaire responses and verifications evidence that there is no relationship between NN/LP and Huaiyin 5 such that they should not be entitled to separate rates from one another. Huaiyin 5 also states that during verification, the Department examined its management, facilities, and legal responsibility. According to Huaiyin 5, the Department's idea that NN/LP and Huaiyin 5 should share a rate was based on the idea that their export operations were intertwined and that there was a web of control relationships such that prices and exports were subject to significant manipulation. Huaiyin 5 argues that it appears that both entities are being required to prove a negative-that is, that there is no web of control relationship such that prices and exports were subject to manipulation. In Huaiyin 5's view, the Department has thus impermissibly switched the burden to the respondents in that the parties are being presumed affiliated unless they can prove otherwise. Nonetheless, Huaiyin 5 asserts, during verification, it was affirmatively shown that there is no web of control relationships. According to Huaiyin 5, the following facts were proven during verification: 1-Mr. Wei Wei is not on the Board of Directors of NN/LP; 2- Mr. Wei Wei is not an employee at NN/LP; 3-Mr. Wei Wei was not on the payroll of NN/LP; 4-Mr. Wei Wei is not a manager at NN/LP, and all of NN/LP's business decisions are made by its managers; 5-Mr. Wei Wei had no interaction with NN/LP during the period of review; 6-Mr. Wei Wei had nothing to do with price negotiations for NN/LP during the period of review; 7-Mr. Wei Wei is not on the Board of Directors of Huaiyin 5; 8-Mr. Wei Wei is not a manager at Huaiyin 5; and 9-Mr. Wei Wei is not an employee at Huaiyin 5. According to Huaiyin 5, the Department's conclusion that there is a web of relationships consists of three discrete facts: 1- Huaiyin 5 paid some of Mr. Wei Wei's expenses during the POR, a period during which it was conclusively shown that Huaiyin 5 made no sales to the United States of the subject merchandise (thus making it factually and legally impossible for Huaiyin 5's sales/exports to the U.S. to be influenced by Mr. Wei Wei); 2-Mr. Wei Wei assisted the president of the minority owner of NN/LP during the POR with non-subject merchandise; and 3- Huaiyin 5 introduced NN/LP to two crawfish tail meat suppliers from whom NN/LP purchased tail meat (for which Huaiyin 5 has indicated that no remuneration was received). According to Huaiyin 5, the above is all of the information on the record. It is Huaiyin 5's position that for the Department to take from the above that there is a web of control relationships is without legal basis. According to petitioner, for the reasons stated in the Preliminary Results, the Department acted appropriately in finding that "there is no new information or evidence of circumstances in the current review... to warrant any reconsideration of the relationship between Ningbo Nanlian and Huaiyin 5." 66 FR at 52102. According to petitioner, it is impossible for Jiangsu Hilong to obtain its own separate assessment rate or deposit rate as a result of this review, regardless of the Department's finding on the question of affiliation, as according to its letter submitted to the Department on May 22, 2001, it sold no subject merchandise to the U.S. during the POR. According to petitioner, if the Department agrees with Jiangsu Hilong that it is inappropriate to issue a combined HFTC5-NN/LP rate in this review, the Department may issue a separate rate for NN/LP, but not for HFTC5 or Jiangsu Hilong. In that event, petitioner argues, the Department should also clarify that the deposit rate applicable to future entries by Jiangsu Hilong is not the 2.75% rate found for the combined HFTC5-Ningbo Nanlian entity in the final results of the 1998-99 review, since that rate applies only to the combined entity. Instead, petitioner asserts, if Jiangsu Hilong is indeed the successor in interest of HFTC5, the deposit rate must be the last rate found for HFTC5 individually-that is, the 90.5% rate in effect prior to the 1997-98 final results. Petitioner argues that, alternatively, if Jiangsu Hilong is not the successor of HFTC5, deposits must be collected at the China-wide rate until actual entries by Jiangsu Hilong can be evaluated in a subsequent administrative review, or until Jiangsu Hilong's status as successor can be evaluated in a subsequent changed circumstances review. Department's Position: As noted in the Preliminary Results, in the 1997/1998 administrative review, the Department determined that the export operations of NN/LP and Huaiyin 5 were intertwined such that the two companies appeared to be under common control and should receive a single antidumping duty rate. See Freshwater Crawfish Tail Meat from the People's Republic of China: Final Results of Administrative Antidumping Duty and New Shipper Reviews, and Final Recission of New Shipper Review, 65 FR 20948 (April 19, 2000) (Final Results ADR & NSR (3/97-8/98). Specifically, the Department found that the nature of the relationships between Huaiyin 5 and NN/LP constituted a web of control relationships such that prices and exports were subject to significant manipulation. See "NN/H5 Memorandum"; and Final Results ADR & NSR (3/97-8/98), and accompanying Decision Memorandum at Comments 13-17, both of which have been placed on the record of this review. NN/LP and Huaiyin 5 were given a single rate in the 1998/1999 administrative review as well, as the Department was not provided with new information or evidence of circumstances in the 1998/1999 review that differed sufficiently from the circumstances in the 1997/1998 review to warrant any reconsideration of the relationship between NN/LP and Huaiyin 5. See Final Results ADR & NSR (9/98-8/99). Again, in this review, the Department has not been provided with new information or evidence of circumstances in the current review that differ sufficiently from circumstances in the prior reviews to warrant any reconsideration of the relationship between NN/LP and Huaiyin 5. Furthermore, as noted in the verification report concerning these entities, while conducting verification, the Department found evidence of a continuing commercial relationship between NN/LP and Huaiyin 5 with respect to crawfish, as well as evidence of a continuing business relationship between Mr. Wei Wei and both Huaiyin 5 and NN/LP (by virtue of Mr. Wei Wei's dealings with Louisiana Packing Company, which is the U.S. owner in the Ningbo Nanlian joint-venture). See "NN/H5 Verification Report" at 16-17. With respect to the continuing commercial relationship between Huaiyin 5 and NN/LP, officials of both entities explained to the verification team that in 1999, during the last POR, Huaiyin 5 assisted NN/LP in locating sources of tail meat, in product inspections, etc. Id. However, while verifying Huaiyin 5, the team discovered invoices to Louisiana Packing (the U.S.-based part-owner of joint venture NN/LP) from Huaiyin 5, indicating payment of a commission of 60 cents per pound for 24 containers of crawfish that NN/LP purchased during the POR. Id. With respect to the continuing business relationship between Mr. Wei Wei and both Huaiyin 5 and NN/LP, verification in the current review revealed several pertinent facts. First, during the Huaiyin 5 verification, in response to the team's request that Huaiyin 5 explain its relationship with Mr. Wei Wei during the POR, Huaiyin 5's general manager, Mr. Yang Yi Xiang, explained that Mr. Wei Wei worked for Huaiyin 5 from 1988 to 1997, but that he quit the company in 1997, and that the company had no business or informal dealings, nor any other type of relationship with him during the POR. However, in reviewing Huaiyin 5's accounting records, the verification team discovered three hotel bills which Huaiyin 5 paid for Mr. Wei Wei during the POR. The first such bill was for Mr. Wei Wei's stay in Shanghai, China, in December, 1999 (i.e., during the current POR). According to Mr. Yang, the other two bills were for Mr. Wei Wei's stays- during the POR-at two different hotels in Lianyungang, China. Mr. Yang then clarified that he will still sometimes ask Mr. Wei Wei to do things for the company. According to Mr. Yang, he and Mr. Wei Wei will also sometimes help maintain relationships with one another's customers. During the verification of NN/LP, Mr. Edward Lee, owner of Louisiana Packing (again, the U.S.-based part-owner of NN/LP) explained that he also still sometimes asks Mr. Wei Wei for help on business matters. In light of the information discussed above, we continue to find that NN/LP and Huaiyin 5 should receive a single antidumping duty rate for purposes of these final results. Comment 21: Yancheng Haiteng's Indirect Selling Expense Ratio Yancheng Haiteng argues that, in our preliminary results Preliminary Results, we calculated its indirect selling expense ratio in a different manner than in previous reviews. Yancheng Haiteng asserts that the worksheet it provided in its questionnaire response was consistent with the methodology used by the Department in previous reviews. Yancheng Haiteng states that, in the preliminary results of this review, we revised its indirect selling expense ratio by dividing the reported crawfish- related expenses of Haiteng's affiliated importer by the total income from period of review crawfish expenses. Yancheng Haiteng claims that, in the previous administrative review and in its new shipper review, the Department calculated Yancheng Haiteng's indirect selling expense ratio by dividing crawfish-related expenses by total income from all sales by the affiliated importer. Yancheng Haiteng argues that for these final results, the Department should recalculate the ratio by allocating the total indirect selling expenses by a ratio of income from the crawfish sales over total income. Yancheng Haiteng states that this would be consistent with the Department's methodology, citing Notice of Final Determinations of Sales at Less Than Fair Value: Steel Wire Rope from India and the People's Republic of China; Notice of Final Determination of Sales at Not Less Than Fair Value: Steel Wire Rope from Malaysia, 66 FR 12759 (February 28, 2001). Yancheng Haiteng states that the Department verified its affiliated importer in the 1998-1999 review and found that certain indirect selling expenses (e.g., salary and payroll) were not related to crawfish sales in any way. Department's Position: In the preliminary results, we allocated all selling expenses to crawfish sales. For these final results, we have applied our standard allocation methodology for indirect selling expenses. That is, we have allocated indirect selling expenses by a ratio of crawfish income to total income. Comment 22: Yancheng Haiteng's Marine Insurance Factor Yancheng Haiteng states that in our preliminary results, we attempted to calculate a net constructed export price by deducting certain movement expenses, including marine insurance incurred on shipments of subject merchandise. Yancheng Haiteng argues that the Department deducted the 'marine insurance factor' rather than a per unit marine insurance amount. Yancheng Haiteng argues that we should correct this clerical error for the final results. Department's Position: We agree, and we have corrected this clerical error for these final results. Comment 23: Certain Domestic Parties' Status as Interested Parties Lakebest, Qingdao Rirong, Yancheng Haiteng, and Suqian argue that the LDA&F and Bob Odom, Commissioner, do not have standing as interested parties in this proceeding, and that filings should be made solely on behalf of the CPA. These respondents note that while the investigation petition listed the CPA, the LDA&F and Bob Odom, Commissioner, as petitioners, the Department, in both its initiation notice and final determination in the original investigation, identified the CPA as sole petitioner. According to these respondents, the Act defines "interested parties" to include "a manufacturer, producer, or wholesaler in the United States of a domestic like product," and "a trade or business association a majority of whose members manufacture, produce, or wholesale a domestic like product in the United States." See section 771(9)(C) & (E) of the Act. However, according to these respondents, the Act does not provide any grounds for a state administrative agency-or its head-to have legal standing as an interested party to participate in antidumping proceedings. These respondents note that only counsel for interested parties are eligible for access to business proprietary information under Administrative Protective Order (APO), and further argue that if counsel were acting on behalf of LDAF and Bob Odom, Commissioner, such counsel would not be eligible to have access to business proprietary information (BPI) released under the APO of this proceeding. According to these respondents, any comments submitted by counsel for both the CPA, and the LDA&F and Bob Odom, Commissioner, that pertain to BPI of any respondent to this proceeding raises concerns of potential APO violations arising from improper release of BPI information to non-interested parties. These respondents assert that the presence of a state agency, and an official of that agency, taints these proceedings because each are political entities to whom the Act does not grant standing. They therefore request that filings made in this proceeding on behalf of the LDA&F and Bob Odom be rejected. According to petitioner, respondents' arguments regarding the standing of LDA&F and Commissioner Odom are moot. Petitioner asserts that it is not disputed that the CPA has standing as an interested party. Accordingly, petitioners argue, since all filings by the domestic parties were made on behalf of the CPA, in addition to LDA&F and Commissioner Odom, there is no basis for respondents' claim that the filings should be rejected. According to petitioner, the antidumping statute does not prohibit the Department from accepting information from persons who are not interested parties. Petitioner also notes that information received under APO can never be disclosed to one's own clients, whether they are interested parties or not. Since, petitioner argues, there is no question that the CPA is an interested party, there can also be no question that release of APO information to the lawyers who represent the CPA is proper. According to petitioners, joint representation of other persons in this review, regardless of whether they are interested parties, does not raise concerns of potential APO violations. Thus, petitioner argues, respondents' arguments regarding the standing of LDA&F and Commissioner Odom should be dismissed as moot. Department's Position: We agree with petitioner. The Act does not prohibit the Department from accepting information from persons who are not interested parties. Furthermore, it is not disputed that the CPA-an association of crawfish processors that is also the petitioner in this case-has standing as an interested party. See Final Determination. As all filings by the domestic parties were made on behalf of the CPA, in addition to LDA&F and Commissioner Odom, there is no basis for respondents' claim that the filings should be rejected. As for the respondents' concern over potential APO violations arising from the improper release of BPI information to non-interested parties, the Department has procedures for addressing any situation in which an improper release of BPI information is alleged to have occurred. Comment 24: Application of the Continued Dumping and Subsidy Offset Act of 2000 (Byrd Amendment) Fujian Pelagic et al. argue that U.S. respondent interested parties imported and/or sourced subject merchandise from various Chinese export companies and that as U.S. entities these importers are entitled to full due process rights under the U.S. constitution. Antidumping duties have been held to be within constitutional limits precisely because they are not penalties. See C.J. Tower & Sons, 21 CCPA 417, 71 F.d 438 (1934) (C.J. Tower). Fujian Pelagic et al. state that the new amendments made by this new law apply to all antidumping and countervailing duty assessments made on or after October 1, 2000. Fujian Pelagic et al. further state that when the collected duties are distributed to the domestic industry, this alters the antidumping law into a civil action, which contrasts with C.J. Tower, and this makes the amount collected a "penalty." Fujian Pelagic et al. also argues that with the passage of the Byrd Amendment, the essential purpose of the antidumping statute has been transformed from a remedial statute into a penal statute, because the duties no longer equalize competitive conditions, but instead shift revenue from the importers to the domestic industry. Fujian Pelagic et al. state that a change in the remedy changes the law. Fujian Pelagic et al. also argue that the term "duties" is associated with government collection for revenue purposes. Fujian Pelagic asserts that the Department's actions in this investigation and its failure to provide respondent parties with a full complement of due process rights, violates the U.S. Constitution because such parties are entitled to application of a remedial statute as provided by Congress. Although the majority of procedural due process cases involve the judicial process, the principles are fully applicable to any executive or administrative forum entrusted with determinations of significant rights. Thompson v. Washington, 497 F.2d 626, 634 (D.C. Cir. 1973) (citing Londoner v. City and County of Denver, 210 U.S. 373, 52 L. Ed. 1103, 28 S. Ct. 708 (1908)). Fujian Pelagic et al. state that the imposition of an antidumping duty without full due process protections for importers, including a hearing before a neutral judge, has been held to be within constitutional limits only because the antidumping duty is a tax not a penalty. Fujian Pelagic et al. further state that the Byrd Amendment obliterates the remedy for violation of the antidumping laws in place before the Byrd Amendment and replaces it with a drastic measure that alters the rights of the respondents in an antidumping proceeding. According to petitioner, the new section 754 to the Act, provides that "[d]uties assessed pursuant to a countervailing duty order, an antidumping duty order, or a finding under the Antidumping Act of 1921 shall be distributed on an annual basis under this section to the affected domestic producers for qualifying expenditures" pursuant to procedures prescribed by the Commissioner of Customs. In petitioner's opinion, the amendment provided no new authority to the Commerce Department and did not alter the Department's responsibilities or procedures in any way. Furthermore, petitioner argues, the amendment is irrelevant to the decisions that must be made by the Department in this review. See Final Results NSR (9/99- 9/00), and accompanying Decision Memorandum at Comment 7 (rejecting virtually identical arguments against the Byrd Amendment by the same counsel). According to petitioner, respondents' claim that the amendment transmogrifies the antidumping statute from a remedial measure into a compensatory or punitive one betrays a fundamental misunderstanding about the meaning of these terms. Petitioner states that a compensatory measure is one that will compensate the injured party for the injury sustained, whereas a punitive measure is calculated as the amount thought necessary to punish and to deter future violations. In petitioner's view, the Byrd Amendment does not allow domestic parties to obtain a recovery based on the amount of their economic loss, nor does it provide for the imposition of antidumping duties in an amount deemed necessary to punish those who sell at dumped prices or to deter future dumping. Instead, petitioner argues, antidumping duties are remedial in the sense that, at least in theory, they simply remove the price benefit that has arisen as the result of dumping or subsidization. Petitioner states that this was the measure of establishing antidumping duties before the Byrd Amendment, and it remains the measure applied by the Department today. Petitioner further states that these proceedings remain subject to 19 U.S.C. § 1677c(a) and (b), which provide that the Administrative Procedure Act does not apply to antidumping proceedings. See also, GSA, S.R.L. v. United States, 77 F. Supp.2d 1349, 1359 (CIT 1999). According to petitioner, the Byrd Amendment did not change this, and therefore, respondents have exactly the same procedural due process rights today that they had before the Byrd Amendment was enacted. See American Ass'n of Exporters and Importers v. United States, 751 F.2d 1239, 1250 (Fed. Cir. 1985) (describing such rights). Department's Position: The Byrd Amendment provides that antidumping and countervailing duties will be distributed by the U.S. Customs Service on an annual basis to the affected producers. This law has no impact on how the Department administers the antidumping duty laws. In addition, the Department is not responsible for administering this law. Moreover, it is well established that the antidumping law is remedial. See C.J. Tower; see also Chaparral Steel Co. v. United States, 901 F.2d 1097, 1103-04 (Fed. Cir. 1990). The mere provision for the distribution of antidumping duties to the domestic producers affected by dumped imports does not turn the antidumping law into a punitive one. Recommendation Based on our analysis of the comments received, we recommend adopting all of the above positions. If these recommendations are accepted, we will publish the final results and the final weighted-average dumping margins in the Federal Register. Agree________ Disagree ________ _______________________________ Faryar Shirzad Assistant Secretary for Import Administration _______________________________ Date _______________________________________________________________________ footnote: 1. In its response to the Department's first supplemental questionnaire of the administrative review period 1998-1999, dated July 7 2000, page 11, YFT stated that, except for sales to Ocean Harvest, the entry dates are not available to the company, as it does not act as the importer.