Ta Chen Stainless Steel Pipe, Inc. v. United States ( 2000 )

Slip Op. 00-107
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
TA CHEN STAINLESS STEEL PIPE, Inc., :
: Court No. 97-08-01344
Plaintiff, :
:
v. : Public Version
:
UNITED STATES, :
:
Defendant. :
____________________________________:
[Commerce remand determination affirmed.]
Dated: August 25, 2000
Ablondi, Foster, Sobin & Davidow, p.c. (Joel Davidow and
Peter Koenig) for plaintiff.
David W. Ogden, Assistant Attorney General, David M. Cohen,
Director, Velta A. Melnbrencis, Assistant Director, Commercial
Litigation Branch, Civil Division, United States Department of
Justice (Mark L. Josephs), Cindy G. Buys, Office of the General
Counsel, United States Department of Commerce, of counsel, for
defendant.
OPINION
RESTANI, Judge: On October 28, 1999, the court remanded the
final results of the Department of Commerce, International Trade
Administration (“Commerce” or “the Department”) in Certain Welded
Stainless Steel Pipe from Taiwan, 62 Fed. Reg. 37,543 (Dep't
Commerce 1997) (final results of admin. rev.) [hereinafter "Final
Results"]. See Ta Chen Stainless Steel Pipe, Ltd. v. United
States, No. 97-08-01344, 1999 WL 1001194 (Ct. Int’l Trade Oct.
28, 1999). Familiarity with the court’s earlier opinion is
Court No. 97-08-01344 Page 2
presumed.
Commerce issued its remand determination on February 25,
2000. See Final Results of Redetermination Pursuant to Court
Remand: Ta Chen Stainless Steel Pipe, Ltd. v. United States,
Court No. 97-08-01344 [hereinafter “Remand Results” or “RR”]. Ta
Chen contests the Department’s application of adverse facts
available and selection of the adverse margin in the Remand
Results.1
Standard of Review
In reviewing final determinations in antidumping duty
investigations, the court shall hold unlawful any agency
determination found unsupported by substantial evidence on the
record, or otherwise not in accordance with law. 19 U.S.C. §
1516a(b)(1)(B)(i) (1994).
Background
A. Ta Chen’s Affiliation with Sun Stainless, Inc.
In the Final Results, Commerce found that Ta Chen was
affiliated with one of its U.S. distributors, Sun Stainless, Inc.
1
Avesta Sheffield Inc., Damascus Tube Division,
Damascus-Bishop Tube Co., and United Steelworkers of America
(AFL-CIO/CLC), defendant-intervenors as to Ta Chen's Rule 56.2
motion, filed a stipulation of dismissal pursuant to USCIT Rule
41(a)(1)(B) and no longer appear as defendant-intervenors in this
case. See Ta Chen Stainless Steel Pipe, Ltd. v. United States,
No. 97-08-01344 (Ct. Int’l Trade Mar. 3, 2000) (stipulation of
dismissal).
Court No. 97-08-01344 Page 3
(“Sun”), by virtue of Ta Chen’s control over Sun, pursuant to 19
U.S.C. § 1677(33)(G) (1994). Final Results, 62 Fed. Reg. at
37,549-50. Because of Ta Chen’s affiliation with this U.S.
distributor, Commerce determined that Ta Chen had constructed
export price (“CEP”) sales during the period of review (“POR”).
Because Ta Chen had not provided data on Sun’s U.S. sales, the
record did not contain the information necessary to calculate
CEP. Commerce determined that Ta Chen failed to comply to the
best of its ability in providing Sun’s U.S. sales information.
Id. at 37,552-53. Therefore, Commerce applied partial adverse
facts available for Sun’s U.S. sales. Id.
The court held that Commerce’s determination that Ta Chen
controlled Sun was supported by substantial evidence. Ta Chen,
1999 WL 1001194 at *11. The court found, however, that Commerce
had failed to provide Ta Chen with sufficient notice of its
determination that Ta Chen controlled Sun, and that the
Department had never specifically requested the information on
Sun’s U.S. sales. Id. at *12. Therefore, the court held that
Commerce had failed to comply with its statutory obligation under
19 U.S.C. § 1677m(d) (1994) by failing to provide the respondent
with notice of a deficient submission before applying facts
available. Id. The court remanded the Final Results for
Commerce to request Sun’s U.S. sales information from Ta Chen.
Court No. 97-08-01344 Page 4
Id. at *14.
On November 9, 1999, Commerce issued a supplemental
questionnaire to Ta Chen requesting information on Sun’s U.S.
sales in order to calculate CEP. RR at 2. Ta Chen contacted
Picol Enterprises, Inc. (“Picol”) for this information. Letters
(Nov. 30, 1999), at 5, P.R. Doc. 1216, Def.’s Remand App., Tab 4,
at 5. Sun’s owner, Frank McLane, had sold Sun to Picol
International and Masaru Kimura in July 1995. Ta Chen’s Response
to Petitioner’s Comments (Dec. 20, 1996), at 12-14 & Ex. 3, C.R.
Doc. 14, Pl.’s Prop. App. to 56.2 motion, Tab B, at 12-14 & Ex.
3. In response to its inquiry, Ta Chen received a letter dated
November 25, 1999, from Picol Sun’s counsel stating that it would
not cooperate with the Department’s inquiry because the company
had closed on September 30, 1996. Letters, at 6, Def.’s Remand
App., Tab 4, at 6. Picol Sun’s counsel stated that it no longer
maintained any business operations in the United States and that
it would be burdensome for Picol Sun to respond to the request.
Id. Picol Sun’s counsel did state that he would ask his client
to reconsider. Id. On November 30, 1999, Ta Chen requested an
extension of time in which to provide the Sun information, which
the Department granted. RR at 2. On December 7, 1999, Ta Chen
requested another extension, but the next day it forwarded the
Department a letter from Picol Sun’s counsel stating that it
Court No. 97-08-01344 Page 5
would not respond to the Department’s questionnaire for the
reasons stated in the November 25, 1999 letter. Letters (Dec. 8,
1999), at 2, P.R. Doc. 1218, Def.’s Remand App., Tab 7, at 2.
Without the information on Sun’s U.S. sales, Commerce did not
have the information needed to calculate CEP.
Commerce concluded that because Ta Chen had withheld or
failed to provide the information requested, it would apply facts
otherwise available pursuant to 19 U.S.C. § 1677e(a) (1994). RR
at 3. Commerce further concluded that Ta Chen had failed to
comply to the best its ability in providing the information, and
that an adverse inference pursuant to 19 U.S.C. § 1677e(b) was
warranted for the Sun sales. Id. at 3-4. In calculating a
partial adverse facts available margin, Commerce “assigned the
highest calculated margin calculated for these final remand
results to be applied to Ta Chen’s sales to Sun.” Id. at 5-6.
The sale with the highest dumping margin was 30.95 percent, which
Commerce used to recalculate the margin of 2.60 percent for Ta
Chen’s sales during the POR. Id. at 14-15. Ta Chen challenges
the remand determination, contesting the application of adverse
facts available and the selection of the margin.
B. Alleged Commissions to Anderson
In its motion for judgment on the agency record, Ta Chen
challenged the Department’s finding that Ta Chen had failed to
Court No. 97-08-01344 Page 6
report commissions to a U.S. customer, Anderson Alloys. In the
Final Results, Commerce had applied partial adverse facts
available to Ta Chen’s sales to Anderson. Final Results, 62 Fed.
Reg. at 37,544. The court found that Commerce’s finding in this
regard was not supported by substantial evidence. Ta Chen, 1999
WL 1001194 at *16. The court directed Commerce either to provide
Ta Chen with an opportunity to submit evidence on the purported
commissions or to disregard this issue on remand. Id. at *17.
On remand, Ta Chen responded to Commerce’s supplemental
questionnaire, stating that it had not made any sales during the
POR on which it paid commissions to Anderson. Remand Results at
5. Commerce therefore did not apply facts available to Ta Chen’s
sales to Anderson upon remand. Id. This issue is thus no longer
before the court.
Discussion
I. Application of adverse facts available
Ta Chen contests the application of adverse facts available
to its sales to Sun, arguing that it was unable to provide Sun’s
information because of the sale to Picol International and Masaru
Kimura in July 1995. Ta Chen argues that the Department’s remand
determination impermissibly concludes that Ta Chen is affiliated
with the new entity, Picol Sun. Ta Chen maintains that it did
not have control over Picol Sun’s records and could not force
Court No. 97-08-01344 Page 7
Picol Sun to provide the necessary information. Ta Chen states
that Department precedent does not support the application of
adverse facts when a respondent cannot obtain information from an
affiliate, but only supports the application of neutral facts
available.
Commerce concluded that it could expect Ta Chen to provide
Sun’s information. Commerce stated in the Remand Results:
We are not convinced that Sun’s closure is a sufficient
explanation as to why Ta Chen cannot develop the necessary
information. The requested data relates to a period when Ta
Chen and Sun were readily sharing the subject information.
Thus, this is not a situation where one corporate entity
would object to disclosure of confidential business
information to another corporate entity. In this situation,
it is reasonable to expect Ta Chen to work with Sun’s new
owners to obtain the new information.
RR at 11. As Commerce notes, the burden of creating an accurate
record rests with the respondent. See Tianjin Mach. Import &
Export Corp. v. United States, 16 CIT 931, 936, 806 F. Supp.
1008, 1015 (1992) (“burden of creating an adequate record lies
with respondents and not with Commerce”) (citation omitted).
Ta Chen does not and cannot contest the fact it had
operational control of Sun. The court found Commerce’s
affiliation finding supported by substantial evidence due to the
numerous connections between Ta Chen and Sun. See Ta Chen, 1999
WL 1001194 at *4-10 (discussing Ta Chen and Sun’s historical
ties, Sun’s distribution of only Ta Chen products, Ta Chen’s
Court No. 97-08-01344 Page 8
custody of Sun’s signature stamp, Ta Chen’s credit monitoring of
Sun, and debt financing arrangement between Ta Chen and Sun). It
is reasonable for the Department to conclude that this
operational control gave Ta Chen access to Sun’s records. This
conclusion is further supported by the fact that Ta Chen was able
to provide other confidential records from Sun, such as Sun’s
federal income tax records. See Final Results, 62 Fed. Reg. at
37,552. It is also reasonable for Commerce to expect Ta Chen to
maintain any relevant records pending the final outcome of the
administrative review. See Krupp Stahl A.G. v. United States, 17
CIT 450, 454, 822 F. Supp. 789, 793 (1993) (stating that
respondents are responsible for maintaining their records during
a pending litigation); Koyo Seiko Co. v. United States, 16 CIT
366, 376, 796 F. Supp. 517, 525 (1992) (holding that respondent
had responsibility of keeping records for the ongoing
investigation despite Commerce’s “extraordinary delay”). In
order to comply to the best of its ability, Ta Chen should have
preserved Sun’s information in the event that its sales were
classified as CEP.
Ta Chen argues that it did not have reason to provide Sun’s
information until January 1997, because the Department did not
state its intention to classify Ta Chen’s sales as CEP sales
until the issuance of the Preliminary Results in January 1997.
Court No. 97-08-01344 Page 9
See Certain Welded Stainless Steel Pipe from Taiwan, 62 Fed. Reg.
1,435, 1,435-36 (Dep’t Commerce 1997) (preliminary results of
admin. rev.). By that time, Ta Chen argues, it could not have
provided the information because Sun had already been sold. Ta
Chen was nevertheless aware prior to January 1997 that its sales
to Sun were at issue. As early as July 1994, Ta Chen knew its
relationship with Sun was at issue because the petitioners had
called it to the Department’s attention in the first
administrative review. See Certain Welded Stainless Steel Pipe
from Taiwan, 64 Fed. Reg. 33,243, 33,244 (Dep’t Commerce 1999)
(final results of administrative review) (results from the first
and second administrative reviews of Ta Chen). Petitioners also
renewed their concerns regarding Sun in July 1995. Id. Ta Chen
had reason to argue that it was not affiliated with Sun, pursuant
to the new definition of the term “affiliated party.” Ta Chen,
1999 WL 1001194 at *14. But Ta Chen cannot claim that it was
unaware of the possibility that its sales would be classified as
CEP sales, in light of its numerous connections with Sun. Ta
Chen therefore could have, and should have, preserved its
information on Sun’s sales in order to provide full information
for the Department.
Ta Chen also claims that the application of adverse facts
available is inconsistent with prior determinations. Ta Chen
Court No. 97-08-01344 Page 10
cites in particular Certain Cut-to-Length Carbon Steel Plate from
Belgium, 63 Fed. Reg. 2,959 (Dep’t Commerce 1998) (final results
of antidumping duty admin. rev.)[hereinafter “Cut-to-Length from
Belgium”]. In that determination, Commerce stated it “may resort
to adverse facts available in response to [respondent’s] failure
to report [information from an affiliate] unless [respondent]
establishes that it could not compel its affiliate to report [the
information].” Id. Commerce chose not to make an adverse
inference in that determination because the Department had not
informed the respondent of certain deficiencies in the
respondent’s attempt to show that it could not obtain the
information from the affiliate. Id. Similarly, in the other
determinations cited by Ta Chen, Commerce applied a general rule
of not using adverse facts when the respondent could demonstrate
that it did try to obtain information from an affiliate. See
Roller Chain, Other than Bicycle, from Japan, 62 Fed. Reg.
60,472, 60,476 (Dep’t Commerce 1997) (notice of final results and
partial recission of antidumping duty administrative review)
(despite respondent’s efforts, “it was not in a position to
compel the affiliated customer to produce the information
requested by the Department” and Department did not apply adverse
facts available); see also Certain Fresh Cut Flowers from
Colombia, 63 Fed. Reg. 5,354, 5,356 (Dep’t Commerce 1998)
Court No. 97-08-01344 Page 11
(preliminary results and partial termination of antidumping duty
admin. rev.) (Department chose not to apply adverse facts for
missing information where respondent’s “exhaustive efforts at
locating [the information from a former affiliate] . . . were
futile”); Certain Cut-to-Length Carbon Steel Plate from Brazil,
63 Fed. Reg. 12,744, 12,751 (Dep’t Commerce 1998) (final results
of antidumping duty admin. rev.) (Department did not apply
adverse inference where respondent “did attempt to obtain [COP]
information from its affiliate” and where nature of affiliation
was such that respondent could not compel affiliate to provide
information).
On remand, Commerce applied this general rule as stated in
Cut-to-Length from Belgium. As in that determination, the burden
was on Ta Chen to show that it could not compel Sun to provide
the information. Ta Chen failed to meet that burden. Upon
remand, Ta Chen simply forwarded the Department’s questionnaire
to Picol Sun, and once Picol Sun’s counsel stated that Sun did
not wish to comply, Ta Chen informed the Department that it would
be unable to provide Sun’s information. This was not a
sufficient effort on the part of Ta Chen. See Kawasaki Steel
Corp. v. United States, No. 99-08-00482, Slip Op. 00-91 at 22-23
(Ct. Int’l Trade, Aug. 1, 2000) (holding that respondent’s
letters requesting information from affiliate were insufficient
Court No. 97-08-01344 Page 12
to show respondent cooperated to best of its ability because
respondent simply acquiesced in affiliate’s refusal to provide
information).
Ta Chen argues that it was not provided with notice that its
attempts to compel Picol Sun to provide the information were
deficient. First, on remand time is of the essence, and parties
need to take all steps necessary to comply with Commerce’s
requests promptly and forcefully. Second, the court cannot
conclude that one additional chance for Ta Chen to remedy its
errors would have made a difference in this case, because the
Department’s decision to apply adverse facts available is also
supported by the fact that Ta Chen could have done more to
preserve the information on Sun’s U.S. sales when it clearly had
control of the information. By not doing so, Ta Chen failed to
comply to the best of its ability. The court therefore affirms
the application of adverse facts available pursuant to 19 U.S.C.
§ 1677e(b).
II. Selection of the adverse margin
In the Final Results, Commerce applied a 31.90 percent
margin as partial adverse facts to Ta Chen’s sales to Sun and
Anderson. Final Results, 62 Fed. Reg. at 37,555-56. This margin
was the highest rate from the less than fair value investigation.
Ta Chen, 1999 WL 1001194 at *17. This resulted in a weighted-
Court No. 97-08-01344 Page 13
average margin of 6.06 percent. Final Results, 62 Fed. Reg. at
37,556. The court did not address Ta Chen’s arguments concerning
corroboration of the margin from data outside the review in its
56.2 motion, in light of its remand instructions. Ta Chen, 1999
WL 1001194 at *18.
On remand, Commerce applied an adverse inference only as to
Ta Chen’s sales to Sun. In recalculating the margin, Commerce
“assigned the highest calculated margin for these remand results
to be applied to Ta Chen’s sales to Sun.” RR at 5-6.2 The
margin used was 30.95 percent, which led to a recalculated
weighted-average margin of 2.60 percent. Id. at 15-18. In
choosing this margin, the Department explained:
In conducting its own analysis of Ta Chen’s U.S. sales, the
Department found that the price and quantity of the sales
for which a 30.95% dumping margin was calculated all fell
within the normal range of price and quantity as the other
sales; these sales were not unusually high or low in price
or quantity. Furthermore, the product for which a 30.95%
dumping margin was calculated was a normal product of Ta
Chen’s . . . . Additionally, the Department chose the 30.95%
rate because it was calculated from Ta Chen’s own sales.
RR at 16-17.
Ta Chen first argues that an adverse margin is unwarranted.
Based on this assumption, Ta Chen maintains that the Department
should have followed its practice of using the weighted-average
2
Corroboration pursuant to 19 U.S.C. § 1677e(c) is not
challenged because Commerce selected a margin based on Ta Chen’s
own information from this review.
Court No. 97-08-01344 Page 14
dumping margin calculated for all of a respondent’s other sales
as the dumping margin for those sales lacking the information
necessary to calculate a dumping margin. See Static Random
Access Memory Semiconductors from Taiwan, 63 Fed. Reg. 8,909,
8,920 (Dep’t Commerce 1998) (notice of final determination of
sales at LTFV) (“as facts available [Department] used the
weighted-average dumping margin calculated for all of
[respondent’s] other sales”). Ta Chen acknowledges that doing so
would have resulted in a weighted-average dumping margin of close
to zero percent. This argument fails because the use of an
adverse inference is warranted based on these facts, as already
discussed. Commerce, therefore, was not required to use its
neutral facts available methodology.
Ta Chen further argues that the Remand Results are contrary
to court precedent and Commerce’s own practice. Ta Chen asserts
that the margin used by Commerce is aberrant, and that such
margins may not be used. Under the former best information
available (“BIA”) rule, the court required Commerce to show that
the margin it selected as BIA was not aberrant. See National
Steel Corp. v. United States, 18 CIT 1126, 1132-33, 870 F. Supp.
1130, 1136 (1994) [“NSC I”]. Ta Chen, however, misunderstands
the court’s concerns regarding aberrant margins. The court in
NSC I did not hold that because a significant portion of
Court No. 97-08-01344 Page 15
respondent’s sales had margins below the selected rate, that the
selected rate was aberrant. Rather, the court’s concern was that
Commerce show that the particular margin chosen bear a “rational
relationship” to respondent’s sales. Id. (citation omitted).
The NSC I court thus remanded the case for Commerce to explain
why its selection of the BIA rate was not aberrant. Id. at 1133,
870 F. Supp. at 1137. After remand, the court accepted
Commerce’s criteria for selecting the highest non-aberrant margin
as BIA. National Steel Corp. v. United States, 20 CIT 100, 103,
913 F. Supp. 593, 596 (1996) [“NSC II”]. Commerce’s guidelines
for selecting the highest non-aberrant margin were to choose a
margin “sufficiently adverse and . . . indicative of current
conditions.” Id.After a second remand, the court upheld the specific margin
used by Commerce because the margin came from sales which
involved a common product and fell within the mainstream of
respondent’s transactions. National Steel Corp. v. United
States, 20 CIT 743, 745-46, 929 F. Supp. 1577, 1580 (1996) [“NSC
III”]. In upholding the BIA margin, the court also noted that
“[there was] nothing in the record to indicate that [the]
particular sale was not transacted in a normal manner.” Id.; see
also Calcium Aluminate Cement, Cement Clinker and Flux from
France, 59 Fed. Reg. 14,136, 14,141 (Dep’t Commerce 1994) (final
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determinations of sales at LTFV) (“When we resort to partial BIA,
it is our practice to use the highest non-aberrational margin
based on respondent’s reported sales. This is an adverse figure,
yet is based on the respondent’s calculated margins.”)3
Commerce’s selection of the 30.95 percent margin as the adverse
rate in this case conforms to the court’s requirement that the
rate not be aberrant, because although the rate is adverse, it is
indicative of Ta Chen’s sales.
The Department continues to use the highest non-aberrational
margin as adverse facts available. See Stainless Steel Sheet and
Strip in Coils from Germany, 64 Fed. Reg. 30,710, 30,714 (Dep’t
Commerce 1999) (final determination of sales at LTFV) (“As
adverse facts available we have assigned the highest non-
aberrational margin calculated for this final determination . . .
3
Commerce certainly may not use a margin known to be
inaccurate. See D&L Supply Co. v. United States, 113 F.3d 1220,
1224 (Fed. Cir. 1997) (holding that Commerce may not use highest
margin from prior administrative review as BIA where that margin
has been “demonstrated to be inaccurate”). The margin used here,
however, is not inaccurate. It was calculated based on Ta Chen’s
own reported data. The court in D&L Supply noted that the
purpose of using the highest prior antidumping duty rate as BIA
is to “[offer] some assurance that the exporter will not benefit
from refusing to provide information, and [to produce] a . . .
rate that bears some relationship to past practices in the
industry in question.” Id. at 1223. While the margin used here
was not drawn from a prior review, the same goals are served by
using the 30.95 percent margin: Ta Chen will not benefit from
refusing to provide the information, and the margin bears a
rational relationship to Ta Chen’s selling practices.
Court No. 97-08-01344 Page 17
.”) In that determination, Commerce determined the highest non-
aberrational margin by examining the frequency distribution of
the margins calculated for the respondent’s reported data.
Commerce then selected the highest margin for the 10 percent of
respondent’s transactions which fell within a specific range.
Id. Ta Chen argues that the Department did not use this same
methodology in the remand results. The Government acknowledges
that Commerce did not use the precise methodology as stated in
Stainless Steel Sheet and Strip in Coils from Germany, because to
have done so would have resulted in a final margin of zero
percent, thereby eviscerating the adverse inference.
Ta Chen argues that Commerce cannot choose a facts available
margin based solely on the fact that it is the highest margin
available. Ta Chen relies on Rhone Poulenc, Inc. v. United
States, 899 F.2d 1185 (Fed. Cir. 1990). Rhone Poulenc, however,
supports Commerce’s position. Analyzing Commerce’s practice
under BIA, the Federal Circuit stated that it was appropriate for
Commerce to presume that the highest prior margin was the best
information of current margins. This presumption “reflect[ed] a
common sense inference that the highest prior margin is the most
probative evidence of current margins because, if it were not so,
the importer, knowing of the rule, would have produced current
information showing the margin to be less.” Id. at 1190. This
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reasoning also applies in this case because using the highest
calculated dumping margin provided an incentive for Ta Chen and
other respondents to produce information.
Ta Chen also contests the Department’s characterization of
the sales with the 30.95 percent dumping margin as falling within
the normal range of price compared to other sales. Ta Chen
states that the 0.04 percent of sales with a 30.95 percent
dumping margin were at a significantly lower price than other Ta
Chen sales. Ta Chen Remand Br. at 28. Commerce’s determination
that the price of the sales for which a 30.95 percent dumping
margin was calculated fell within the normal range of price as
other sales, is supported. In comparing price, Commerce printed
lists of the twenty-one highest negative and positive margins for
Ta Chen. The price of the sales with the 30.95 percent dumping
margin fell within the range of these prices.4 As in NSC III, 20
CIT at 746, 929 F. Supp. at 1580, there is nothing to indicate
that the sales with this particular margin were not “transacted
in a normal manner.”5
4
The prices for the positive dumping margins ranged from
[ ] to [ ]. Final Margin Calculations (Jan. 18, 2000), at 54,
C.R. Doc. 1269, Def.’s Remand Ex. 2, at 1. The price of the
30.95 percent sale was [ ]. Id. The prices for the negative
dumping margins ranged from [ ] to [ ]. Id. at 56, Def.’s Remand
Ex. 2, at 2.
5
Ta Chen also contests Commerce’s characterization of
(continued...)
Court No. 97-08-01344 Page 19
Ta Chen maintains that Commerce may not use a margin where
fewer than 0.5 percent of the respondent’s sales had that margin,
because such sales are de minimis. The Government argues that
“the number of sales with the chosen dumping margin [is not] a
factor in determining whether the margin is useable as facts
available. Instead, Commerce seeks to determine whether the sale
on which the margin is derived is otherwise representative of a
respondent’s other sales.” Gov’t Remand Br. at 31-32. Ta Chen
relies on two revocation decisions for its position. See Pure
Magnesium from Canada, 64 Fed. Reg. 50,489 (Dep’t Commerce 1999)
(final results of antidumping duty admin. rev. and determination
not to revoke order in part); Certain Corrosion-Resistant Carbon
Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate
5
(...continued)
the 30.95 percent sales as falling within the range of Ta Chen’s
other sales for quantity. The Government explains Commerce’s
position by noting that the quantity of the sales with the 30.95
percent margin was [ ], and the range for the other sales was
from [ ] to [ ]. Govt’ Remand Br. at 29 (referring to Ta Chen’s
data sets attached to Ta Chen’s Supplemental Questionnaire
Response (Nov. 12, 1996), C.R. Doc. 8). Given the range, this is
not a particularly telling factor; but Commerce’s other bases for
testing the margin are supportive of its choice. Further, the
highest margin selected was close to margins for other sales,
although the percentage of sales with positive margins was small.
Ta Chen also argues that the number of sales of the product
was not typical because it only represented 2.4 percent of Ta
Chen’s POR sales. The Government states that Ta Chen made [ ]
sales of this product during the POR. Id. The Government notes
that the number of sales is substantial, “regardless of the
percentage these sales represent of Ta Chen’s total sales.”
Gov’t Remand Br. at 29.
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from Canada, 64 Fed. Reg. 2,173 (Dep’t Commerce 1999) (final
results of antidumping duty admin. revs. and determination to
revoke in part). Commerce distinguished these determinations in
the Remand Results on the basis that they involved the issue of
whether dumping margins were reflective of a company’s normal
practice in the context of determining whether the sales had been
made in commercial quantities for purposes of a revocation
decision. RR at 17. Those determinations did not involve the
use of adverse facts available. Commerce stated that it had
“never determined that an adverse facts available margin should
be reflective of a respondent’s actual dumping margins. The
purpose of applying adverse facts available is to induce
respondents to cooperate with the Department’s proceedings.” Id.While the court does not accept Commerce’s proposition that
accuracy is not a goal when using adverse facts available,6 it
agrees with Commerce that in these particular circumstances, if
Commerce rejected Ta Chen’s sales which had positive dumping
6
The court has previously noted its concern that facts
available margins bear a rational relationship to the matter to
which they are applied. See Ferro Union, Inc. v. United States,
44 F. Supp.2d 1310, 1334-35 (Ct. Int’l Trade 1999) (Commerce must
select a total substitute margin which is relevant and reliable,
and bears rational relationship to matter to which it is
applied); World Finer Foods, Inc. v. United States, No. 99-03-
00138, 2000 WL 897752 at *6 (Ct. Int’l Trade June 26, 2000)
(court will not uphold use of individual transaction margins
which bear no apparent relationship to current level of dumping
in industry to corroborate a total substitute margin).
Court No. 97-08-01344 Page 21
margins on the ground that they were de minimis, Commerce would
not be applying an adverse inference, while still using Ta Chen’s
information, because Ta Chen would receive a zero percent dumping
margin.
Ta Chen lastly argues that Commerce’s choice of the partial
adverse facts margin is inconsistent with the record as a whole.
Ta Chen maintains that it is unreasonable to conclude that the
partial 30.95 percent margin is indicative of Ta Chen’s actual
selling practices. Ta Chen ignores that the methodology chosen
by Commerce was the only way to apply an adverse inference in
this case, while still using respondent’s own information. Ta
Chen’s argument that a lower margin, of zero or 3.27 percent,7
would also serve the purpose of inducing Ta Chen to cooperate is
not persuasive. One of the purposes of using adverse facts
available is to “ensure that the party does not obtain a more
favorable result by failing to cooperate than if it had
cooperated fully.” Statement of Administrative Action (“SAA”),
accompanying H.R. Rep. No. 103-826(I), at 870, reprinted in 1994
U.S.C.C.A.N. 3773, 4199; see also NSC I, 18 CIT at 1132, 870 F.
Supp. at 1136 (recognizing under BIA that “although the ultimate
7
Ta Chen received a 3.27 percent dumping margin in the
original less than fair value investigation. Certain Welded
Stainless Steel Pipe from Taiwan, 57 Fed. Reg. 62,300, 62,301
(Dep’t Commerce 1992) (amended final determination and
antidumping duty order).
Court No. 97-08-01344 Page 22
purpose of BIA is not to punish, BIA is intended to be adverse”).
If Commerce had used one of the lower margins, as suggested by Ta
Chen, Ta Chen might have achieved a better result by failing to
cooperate than by cooperating and providing Sun’s information.
The SAA also states that Commerce does not have to prove that the
facts available are the best alternative information. “Rather,
the facts available are information or inferences which are
reasonable to use under the circumstances.” SAA at 869, 1994
U.S.C.C.A.N. at 4198. The court therefore affirms the use of the
30.95 percent margin as partial adverse facts available,
resulting in an overall 2.60 percent margin for Ta Chen after
remand.
Court No. 97-08-01344 Page 23
Conclusion
Commerce’s application of partial adverse facts available
and its selection of the adverse margin were in accordance with
law and supported by substantial evidence. The remand results
are therefore affirmed in their entirety.
________________________
Jane A. Restani
Judge
Dated: New York, New York
This 25th day of August, 2000.