                          Slip Op. 07-131

           UNITED STATES COURT OF INTERNATIONAL TRADE

                               :
TIANJIN MACHINERY IMPORT &     :
EXPORT CORP. and SHANDONG      :
HUARONG MACHINERY CO., LTD.,   :
                               :
                 Plaintiffs,   :
                               : Before: Richard K. Eaton, Judge
          v.                   :
                               : Court No. 05-00522
UNITED STATES,                 :
                               : Public Version
                 Defendant,    :
                               :
          and                  :
                               :
AMES TRUE TEMPER,              :
                               :
                 Deft.-Int.    :
                               :

                          OPINION AND ORDER

[United States Department of Commerce’s final results of the
thirteenth administrative review of the antidumping duty order
covering imports into the United States of heavy forged hand
tools from the People’s Republic of China are sustained in part
and remanded.]

                                              Dated: August 28, 2007

Hume & Associates, PC (Robert T. Hume), for plaintiffs.

Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson,
Director, Civil Division, Commercial Litigation Branch, United
States Department of Justice; Patricia M. McCarthy, Assistant
Director, Civil Division, Commercial Litigation Branch, United
States Department of Justice (Stephen C. Tosini); Office of Chief
Counsel for Import Administration, United States Department of
Commerce (Scott McBride), of counsel, for defendant.

Wiley Rein, LLP (Timothy C. Brightbill and Charles O. Verrill,
Jr.), for defendant-intervenor.
Court No. 05-00522                                        Page   2

     Eaton, Judge: This matter is before the court on the USCIT

Rule 56.2 motion for judgment upon the agency record of

plaintiffs Tianjin Machinery Import & Export Corp. (“TMC”) and

Shandong Huarong Machinery Co., Ltd. (“Huarong”).   By their

motion, plaintiffs challenge certain aspects of the United States

Department of Commerce’s (“Commerce” or the “Department”) final

results of its thirteenth administrative review of the four

antidumping duty orders applicable to imports into the United

States of heavy forged hand tools (“HFHTs”) from the People’s

Republic of China (“PRC”).   See HFHTs, Finished or Unfinished,

With or Without Handles, From the PRC, 70 Fed. Reg. 54,897 (Dep’t

of Commerce Sept. 19, 2005) (final) (“Final Results”); see also

HFHTs, Finished or Unfinished, With or Without Handles From the

PRC, 56 Fed. Reg. 6622 (Dep’t of Commerce Feb. 19, 1991) (notice)

(“HFHTs Orders”).

     Jurisdiction is had pursuant to 28 U.S.C. § 1581(c) (2000)

and 19 U.S.C. § 1516a(a)(2)(B)(iii) (2000).   For the following

reasons, Commerce’s Final Results are sustained in part and

remanded.



                             BACKGROUND

     Plaintiffs are producers and exporters of HFHTs in the PRC.

Their exports to the United States are subject to the HFHTs

Orders covering axes/adzes, bars/wedges, hammers/sledges and
Court No. 05-00522                                         Page    3

picks/mattocks.   On February 27, 2004, plaintiffs (and defendant-

intervenor) asked Commerce to conduct an administrative review of

the HFHTs Orders, the thirteenth such review, for the period of

review February 1, 2003, to January 31, 2004 (“POR”).      See HFHTs,

Finished or Unfinished, With or Without Handles, From the PRC, 70

Fed. Reg. 11,934, 11,935, 11,937 (Dep’t of Commerce Mar. 10,

2005) (prelim.) (“Preliminary Results”).

     The Department initiated its review on March 26, 2004, and

published the Preliminary Results on March 10, 2005.      Commerce

determined preliminarily that plaintiffs sold HFHTs at less than

normal value and further found appropriate the use of facts

otherwise available and adverse facts available (“AFA”) pursuant

to 19 U.S.C. § 1677e(a), (b).     See id. at 11,934–35.   In the

Final Results, Commerce confirmed its preliminary findings.        See

Final Results, 70 Fed. Reg. at 54,898.    Accordingly, the

Department assigned plaintiffs the following rates: Huarong’s and

TMC’s sales of axes/adzes — 174.58 percent; Huarong’s and TMC’s

sales of bars/wedges — 139.31 percent; TMC’s sales of

hammers/sledges — 45.42 percent; and TMC’s sales of

picks/mattocks — 98.77 percent.     See id. at 54,899.

     Before the court, plaintiffs raise two primary objections to

the Department’s conclusions in the Final Results and seek a

remand of this case.   First, plaintiffs insist that Commerce was

not justified in its use of AFA.    Second, in the event the court
Court No. 05-00522                                        Page   4

finds warranted the use of AFA, plaintiffs urge that Commerce

failed to support with substantial evidence its determination of

the AFA rates.   See Pls.’ Mot. J. Agency R.(“Pls.’ Mem.”) 7–8.1



                        STANDARD OF REVIEW

     When reviewing a final antidumping determination from

Commerce, the court “shall hold unlawful any determination,

finding, or conclusion found . . . to be unsupported by

substantial evidence on the record, or otherwise not in

accordance with law.”   19 U.S.C. § 1516a(b)(1)(B)(i).

“Substantial evidence is ‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’”     Huaiyin

Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374

(Fed. Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S.



     1
          In addition, plaintiffs contend that Commerce
erroneously included within the scope of the HFHTs Orders their
exports of the multi-use tough tool (“MUTT”) and thereby
calculated incorrectly the AFA rate for axes/adzes. See Pls.’
Mem. 8. The court, however, has since sustained Commerce’s
inclusion of the MUTT within the scope of the order applicable to
axes, adzes and similar hewing tools. See Olympia Indus., Inc.
v. United States, 30 CIT   ,   , Slip Op. 06-110 at 2–3 (July 24,
2006) (not reported in the Federal Supplement) (“Because the
MUTT’s utility as a tool comes from its steel head with a sharp
blade that can be used for cutting and chopping, the court finds
that it is a hewing tool similar to an axe or adze and, thus,
sustains Commerce’s Final Scope Ruling.”). The 60-day period for
appealing that decision has come and gone without an appeal
having been filed. See Fed. R. App. P. 4(a)(1)(B) (“When the
United States or its officer or agency is a party, the notice of
appeal may be filed by any party within 60 days after the
judgment or order appealed from is entered.”).
Court No. 05-00522                                        Page   5

197, 229 (1938)).    The court determines the existence of

substantial evidence “by considering the record as a whole,

including evidence that supports as well as evidence that ‘fairly

detracts from the substantiality of the evidence.’”     Id. (quoting

Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed. Cir.

1984)).



                             DISCUSSION

I.   The Department’s Use of AFA

     A.   Application of AFA to “Agent” Sales

     Where a respondent in an administrative review

“significantly impedes” a Commerce proceeding, the agency is

permitted to “fill[] gaps in the record” using facts otherwise

available.   See Statement of Administrative Action, Uruguay Round

Agreements Act, accompanying H.R. Rep. No. 103-316, 656, 830–31

(1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4199; see also 19

U.S.C. § 1677e(a)(2)(C).    Here, Commerce states that it used

facts available “because Huarong and TMC . . . significantly

impeded the instant proceeding.”    Issues & Decision Mem. for the

13th Admin. Rev. of HFHTs from the PRC (Dep’t of Commerce Sept.

6, 2005) (“Issues & Dec. Mem.”) at 5.     Specifically, the

Department claims that the “use of the ‘agent’ sales schemes by

[plaintiffs] impeded [its] ability to complete this

administrative review . . ., impose antidumping duties and issue
Court No. 05-00522                                         Page   6

instructions to [U.S. Customs and Border Protection (“Customs”)]

to assess the correct antidumping duties . . . .”    Id. at 6

(citations omitted).    In addition, Commerce decided to use AFA

because, in its view, each company failed to cooperate to the

best of its ability by not disclosing the true nature of the

agency relationship, i.e., that TMC was merely a vehicle by which

Huarong could export its goods to the United States at a lower

rate.   See Def.’s Resp. Pls.’ Mot. J. Admin. R. (“Def.’s Resp.”)

8.   In reaching its conclusion, Commerce found that the

companies’ relationship was such that TMC did nothing more than

forward its blank invoices to Huarong, thus enabling Huarong to

benefit from TMC’s lower dumping margin when making sales to the

United States.

     The relevant section of the antidumping duty statute, 19

U.S.C. § 1677e, requires Commerce to undertake a bifurcated

analysis in determining whether to use facts otherwise available

and, if reliance on such facts is warranted, whether to use an

adverse inference in selecting from among those facts.     First,

under the pertinent part of subsection 1677e(a):

           If——

                  (1) necessary information is not
                  available on the record, or

                  (2) an interested party or other
                  person . . .

                       (C) significantly impedes
                       a proceeding under this
Court No. 05-00522                                        Page   7

                     subtitle, . . .

          the administering authority . . . shall,
          subject to section 1677m(d) of this title,
          use the facts otherwise available in reaching
          the applicable determination under this
          subtitle.

19 U.S.C. § 1677e(a)(C).   It is well settled that a party’s

intent is irrelevant to a decision to use facts available.       See

Ferro Union, Inc. v. United States, 23 CIT 178, 199 n.44, 44 F.

Supp. 2d 1310, 1330 n.44 (1999) (“A respondent could impede a

review without intending to do so, for example, because it did

not understand the questions asked.”).   Thus, subsection (a)

mandates the use of facts available when a respondent

significantly impedes Commerce’s investigation, irrespective of

the respondent’s intent.

     Once it determines that the use of facts otherwise available

is required, Commerce may, if the conditions warrant, use an

inference adverse to the interests of the respondent in selecting

from those facts.2   The Court of Appeals for the Federal Circuit


     2
          Pursuant to subsection 1677e(b):

          If the administering authority . . . finds
          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 administering authority
          . . ., the administering authority . . ., in
          reaching the applicable determination under
          this subtitle, may use an inference that is
          adverse to the interests of that party in
          selecting from among the facts otherwise
                                                    (continued...)
Court No. 05-00522                                           Page   8

in Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir.

2003), stated that, as distinguished from subsection (a),

             subsection (b) permits Commerce to “use an
             inference that is adverse to the interests of
             [a respondent] in selecting from among the
             facts otherwise available,” only if Commerce
             makes the separate determination that the
             respondent “has failed to cooperate by not
             acting to the best of its ability to comply.”
             The focus of subsection (b) is respondent’s
             failure to cooperate to the best of its
             ability, not its failure to provide requested
             information.

Nippon Steel Corp., 337 F.3d at 1381 (quoting 19 U.S.C.

§ 1677e(b)) (alteration & emphasis in original).       While the

statute does not define the phrase “to the best of its ability,”

the Federal Circuit has held those words to “require[] the

respondent to do the maximum it is able to do.”        Id. at 1382.


     2
         (...continued)
             available. Such adverse inference may
             include reliance on information derived
             from——

                  (1) the petition,

                  (2) a final determination in the
                  investigation under this subtitle,

                  (3) any previous review under
                  section 1675 of this title
                  [periodic review] or determination
                  under section 1675b of this title
                  [countervailing duty injury
                  investigations], or

                  (4) any other information placed on
                  the record.

19 U.S.C. § 1677e(b).
Court No. 05-00522                                        Page   9

     Here, the Department resorted to facts otherwise available

and drew an adverse inference from those facts in determining

plaintiffs’ dumping margins for their “agent” sales because it

found that plaintiffs: (1) significantly impeded the

administrative review by continuously misrepresenting the nature

of their “agency” relationship; and (2) failed to cooperate to

the maximum they were able to by not revealing the true nature of

their agency relationship.

     Plaintiffs, however, maintain that they neither impeded the

review nor failed to act to the best of their ability to provide

Commerce with all data regarding their “agent” sales in the

requested form and manner.   See Pls.’ Mem. 19–20.   In making

their argument, plaintiffs point to their initial responses to

Commerce’s Section A Questionnaire:

          Huarong reported that it made sales through
          an agent. Huarong provided a copy of its
          agent agreement. Huarong also included a
          copy of previous verification reports where
          similar “agent” sales were made. . . .
          In addition, Huarong clearly indicated that
          TMC was used as an agent. Likewise, TMC
          properly identified that it acted as an agent
          during this period of review. Additionally,
          Huarong and TMC properly responded to all of
          the [Department]’s interrogatories. For
          example, Huarong provided 1) Copies of the
          purchase orders, commercial invoices, and
          proofs of order entry dates for all direct
          sales of bars during the POR, 2) Copies of
          the purchase orders, commercial invoices, and
          proofs of order entry dates for all agent
          sales of bars during the POR through TMC, and
Court No. 05-00522                                        Page   10

          3) Copies of the purchase orders, commercial
          invoices, and proofs of order entry dates for
          all direct sales of scrapers during the POR.

Pls.’ Mem. 19–21 (footnotes omitted).   Thus, plaintiffs insist

that they did not impede the review and “complied to the best of

[their] ability to answer all questions the [Department] posed.”

Pls.’ Mem. 21.

     Plaintiffs further claim that they participated in a bona

fide agency relationship and thus did not undermine the

administrative review proceedings.

          Commerce erred in stating [plaintiffs] used
          agents in an attempt to circumvent payment of
          antidumping duties. This is not correct
          because [plaintiffs] reported their
          respective agent sales and the information
          required to calculate dumping margins.
          Plaintiffs’ intent was never to have their
          respective importers avoid dumping duties.
          If Plaintiffs had the intent of circumventing
          the antidumping duty order the Plaintiffs
          would not have requested, and participated
          in, the instant administrative review.

          In addition, Commerce mistakes analyzing the
          relationship of Plaintiffs and confounding
          [sic] this with the separate issue of the
          importer of record. Plaintiffs have
          participated in this review giving forth
          valid information regarding its agent sales
          and relationship with various businesses.
          Plaintiffs have never deceived Commerce nor
          provided improper information. To the
          contrary, Plaintiffs have been forthcoming
          with all [their] dealings. No action taken
          by the [plaintiffs] undermined Commerce’s
          ability to “impose accurate antidumping
          duties” . . . . Commerce, in fact, has not
          pointed to a specific law that has been
          violated.
Court No. 05-00522                                        Page   11

Pls.’ Mem. 23–24 (footnotes omitted).

     With respect to Commerce’s use of an adverse inference in

selecting from among the facts otherwise available, plaintiffs

insist that they acted to the best of their ability in providing

Commerce with timely and complete responses to the questionnaires

regarding their “agent” sales and, thus, an adverse inference was

not supported by the record.   See Pls.’ Mem. 24.

     As previously noted, Commerce used facts otherwise available

to determine plaintiffs’ dumping margins for their agent sales

because it concluded that plaintiffs significantly impeded the

review by failing to disclose the true nature of their business

relationship.   In reaching this conclusion, the Department

rejected plaintiffs’ general claim that, because they revealed

their involvement in an agency relationship, Commerce was

precluded from determining their dumping margins based on facts

otherwise available.   In fact, Commerce provided specific reasons

for using facts available in determining plaintiffs’ margins for

their claimed agent sales.   First, the Department maintained that

plaintiffs misrepresented the nature of their business

relationship throughout the administrative review:

          After reviewing the record evidence, the
          Department found that both Huarong and TMC
          continually misrepresented the true nature of
          their relationship with their principal or
          “agent,” as appropriate, during the POR. In
          their questionnaire responses, Huarong and
          TMC claimed that their relationships with
          their “agents” or principals were bona fide
Court No. 05-00522                                        Page   12

          business arrangements. However, only through
          issuing multiple supplemental questionnaires
          to each [plaintiff] did the Department learn
          that nearly all of the sales functions were
          conducted by the principal, and that the
          “agent’s” participation was limited, for the
          most part, to supplying blank invoices to the
          principal with an intention to circumvent the
          order.

Issues & Dec. Mem. at 6.   That is, because plaintiffs made it

appear in their initial Section A responses that their agent

sales were made pursuant to a legitimate agency relationship,

they impeded the investigation.   Id. at 7.

     The Department then justified its use of adverse inferences

in selecting from among the facts available in accordance with 19

U.S.C. § 1677e(b) when determining plaintiffs’ dumping margins:

“[T]he Department has determined that both Huarong and TMC failed

to cooperate by not acting to the best of their ability to comply

with [its] requests for information.”   Id.   In Huarong’s case,

Commerce found that

          an adverse inference [was] warranted because
          Huarong: (1) continually misrepresented the
          true nature of its relationship with the
          “agent” during the POR by portraying the
          company as a bona fide “agent” for the vast
          majority of Huarong’s “agent” sales; (2)
          participated in an “agent” sales scheme in
          order to avoid payment of the appropriate
          cash deposit and assessment rate and
          circumvent the antidumping duty order; and
          (3) undermined [Commerce’s] ability to issue
          instructions to [Customs] to assess accurate
          antidumping duties.

Id. at 7–8.   Likewise, for TMC, the Department concluded that
Court No. 05-00522                                           Page   13

             an adverse inference [was] warranted because
             TMC: (1) continually misrepresented the true
             nature of its relationship with the principal
             during the POR by portraying itself as a bona
             fide “agent” for the vast majority of TMC’s
             “agent” sales; (2) participated in an agent
             sales scheme in order to avoid payment of the
             appropriate cash deposit and assessment rate
             and circumvent the antidumping duty order;
             and (3) undermined [Commerce’s] ability to
             issue instructions to [Customs] to assess
             accurate antidumping duties.

Id. at 8.    Thus, in the Final Results, Commerce applied AFA to

Huarong’s and TMC’s claimed agent sales of bars/wedges.

     The court finds reasonable Commerce’s decision to determine

plaintiffs’ dumping margins for their claimed “agent” sales based

on AFA.     First, pursuant to 19 U.S.C. § 1677e(a), the Department

acted reasonably in resorting to the facts otherwise available on

the record.     By its Section A questionnaire response, Huarong

claimed that it “made some direct sales and some sales through an

agent,” and further insisted that “the agent sales [were]

exported by the agent and should be properly reported by the

agent.”     Huarong Resp. to Apr. 14, 2004, Questionnaire, Sec. A

(May 11, 2004) (“Huarong Sec. A Resp.”) at A-2.     In addition,

Huarong submitted a copy of the purported “agency” agreement.

See Huarong Sec. A Resp., Ex. 3; see also Mem. from James C.

Doyle, Dir., AD/CVD Operations, Import Administration to Barbara

E. Tillman, Acting Deputy Assistant Secretary for Import

Administration, Application of AFA to Huarong (ITA Feb. 28, 2005)

at 1–2 (“Huarong provided the Department with two copies of the
Court No. 05-00522                                       Page   14

“agent” contract with TMC, one which predates the [POR] and one

which was during the POR.    According to the contract, TMC is to

act as Huarong’s ‘agent’ for certain sales and receive a

commission for its services.”) (internal citations omitted).

     Plaintiffs fail to acknowledge, however, that Commerce

discovered, after the issuance of several supplemental

questionnaires, that the business relationship between Huarong

and TMC was nothing more than a scheme apparently directed toward

circumventing the antidumping duties applicable to Huarong’s

HFHTs sales to the United States.    See Issues & Dec. Mem. at 6

(“[O]nly through issuing multiple supplemental questionnaires to

each [r]espondent did the Department learn that nearly all of the

sales functions were conducted by the principal, and that the

‘agent’s’ participation was limited, for the most part, to

supplying blank invoices to the principal . . . .”).   Thus, while

the record shows that the companies reported an “agency”

arrangement, it is apparent that both Huarong and TMC withheld

the actual details of their arrangement, information over which

they had complete command.   In other words, the mere statement

that sales were made through an agent when, in reality, the

agent’s role was simply to provide the principal with blank

invoices, is not enough to preclude Commerce from resorting to

facts otherwise available.   Thus, the Department reasonably

concluded that Huarong’s and TMC’s failure to provide the details
Court No. 05-00522                                       Page   15

of their arrangement significantly impeded the review.

     Huarong’s and TMC’s failure to disclose fully their true

business relationship in their initial questionnaire responses

further impeded the review by preventing Commerce from issuing

accurate liquidation instructions to Customs.   Indeed, without

knowing the identity of the actual seller, any “assessment rate

calculated by the Department would be rendered meaningless

because it would not be applied to all appropriate entries.”

Issues & Dec. Mem. at 6; see also id. at 7 (“The record evidence

gathered by the Department demonstrates that the cash deposit and

assessment rates calculated by the Department for these ‘agent’

sales either would not have been the appropriate rate or would

not have been assessed by [Customs].”).   Put another way, by

entering its merchandise using TMC’s invoice, Huarong avoided the

higher duties that would normally attach to its entries and

instead received the lower rate applicable to TMC’s entries.

     It is apparent from the court’s review of the record that

plaintiffs’ failure to submit accurate and complete data in

response to the Department’s initial questionnaire prevented the

agency from considering correct sales data.   Thus, the court

finds that the Department reasonably concluded that Huarong and

TMC significantly impeded the review and thus that the Department

was justified in its reliance on the facts otherwise available
Court No. 05-00522                                          Page    16

under 19 U.S.C. § 1677e(a).3

     Given that the record supports using facts otherwise

available to determine plaintiffs’ dumping margins with respect

to their claimed “agent” sales, the court must now determine

whether the Department lawfully used an adverse inference when

selecting from among the facts otherwise available in accordance

with 19 U.S.C. § 1677e(b).     Under that provision, Commerce may

use an adverse inference if the respondent “has failed to

cooperate by not acting to the best of its ability to comply with

a request for information . . . .”     19 U.S.C. § 1677e(b)

(emphasis added).    Here, both Huarong and TMC possessed

information regarding the true nature of their purported “agency”

relationship that was material to Commerce’s determination of

their antidumping duty margins, yet both submitted that data only

after the issuance of several supplemental questionnaires.         Thus,

as this Court has previously held, plaintiffs’ “failure initially

to provide the relevant information with respect to their

invoicing arrangement, information that was fully within their

command, justified Commerce’s application of AFA” to plaintiffs’


     3
          Plaintiffs have previously made these arguments before
this Court in litigation dealing with the twelfth administrative
review of the HFHTs Orders. See Shandong Huarong Mach. Co. v.
United States, 30 CIT   ,   , 435 F. Supp. 2d 1261, 1269–70
(2006) (“[E]ven though the Companies ultimately disclosed the
circumstances surrounding their ‘agency’ relationships, their
failure to do so until after the issuance of several supplemental
questionnaires surely significantly impeded Commerce’s
investigation by requiring the agency to prolong its review.”).
Court No. 05-00522                                         Page   17

claimed “agent” sales.    Shandong Huarong Mach. Co. v. United

States, 30 CIT __, __, 435 F. Supp. 2d 1261, 1270 (2006).



     B.   Company Specific Applications of AFA

     In addition to applying AFA to Huarong’s and TMC’s “agent”

sales, Commerce also applied AFA to both companies with respect

to some of their remaining sales.   Specifically, the Department

applied AFA to certain of Huarong’s sales of scrapers4 and to

certain of TMC’s sales of picks/mattocks.



          1.   Application of AFA to Huarong’s Scraper Sales:
               Movement Expenses

     As previously noted, the application of AFA is the product

of a two-step analysis.   See 19 U.S.C. § 1677e(a), (b).    In the

Final Results, the Department found warranted the use of facts

otherwise available in calculating the rate applicable to

Huarong’s scraper sales because, in its view, Huarong “withheld

information that [was] requested by the Department.”5   Issues &

Dec. Mem. at 22.   Specifically, Commerce found that Huarong

failed to disclose that it shipped its merchandise to a


     4
          Scrapers are subject to the antidumping duty order
covering axes/adzes from the PRC. See Olympia Indus., Inc., 30
CIT at   , Slip Op. 06-110 at 2–3.
     5
          Pursuant to 19 U.S.C. § 1677e(a)(2)(A), Commerce is
directed to rely on facts available when reaching its
determination if a respondent “withholds information that has
been requested by [Commerce] . . . .”
Court No. 05-00522                                       Page   18

distribution warehouse prior to shipping the goods to the United

States despite the Department’s repeated requests for that

information.

     As Commerce correctly notes, under the statute, a respondent

is required to report those expenses “incident to bringing the

subject merchandise from the original place of shipment in the

exporting country to the place of delivery in the United

States . . . .”   19 U.S.C. § 1677a(c)(2)(A); see also Issues &

Dec. Mem. at 22 (“As has been established in prior administrative

cases, the respondent must report all movement expenses, which

includes transportation and other expenses, such as

warehousing.”).   Reporting this information is important to the

dumping calculation because Commerce deducts from either

constructed export price or export price the amount of the

movement expenses.   This deduction reduces the United States

price of respondent’s merchandise and, thus, increases its

dumping margin.

     Here, Commerce asked Huarong twice to report the movement

expenses relating to its scraper sales, yet, Commerce found,

          [i]n its questionnaire responses, . . .
          Huarong reported that it did not ship the
          subject merchandise from the factory to a
          distribution warehouse, and, thus, did not
          incur this movement expense. At
          verification, however, the Department noted
          that the loading notification notice for one
          sale listed an unreported movement expense.
          The Department asked for and received the
          loading notification notice for other sales,
Court No. 05-00522                                        Page   19

           which also listed this unreported movement
           expense. Moreover, when Huarong was asked
           about this expense, Huarong stated that this
           expense is incurred for all merchandise even
           though the Department noted that it was not
           reported in Huarong’s U.S. sales database.
           Accordingly, the Department was not aware
           until it was discovered at verification that
           Huarong had not reported further movement
           expenses.

Issues & Dec. Mem. at 22; see also Verification of Sales and

Factors of Production for Huarong (ITA May, 17 2005) (“Huarong

Verification Rep.”) at 17.   Thus, because Commerce did not learn

that Huarong incurred this movement expense until verification,

it concluded that Huarong withheld information.     See Def.’s Resp.

12 (“Verification is meant to confirm the accuracy of data

already reported, not to re-start the period for providing

data.”).

     In addition, the Department found that Huarong failed “to

put forth its maximum efforts to report and obtain information

from its records regarding all incurred movement expenses as

requested.”   Issues & Dec. Mem. at 23.    That is, Commerce found

justified the taking of an adverse inference in selecting from

among the facts otherwise available.      See id.; see also 19 U.S.C.

§ 1677e(b).   For the Department:

           Huarong’s knowledge of this movement expense
           and its decision not to report it, despite
           repeated questionnaires, properly warrants
           the use of AFA. A reasonable [r]espondent
           would have reviewed the Department’s
           questionnaires and its records and reported
           the movement expenses. The [r]espondents
Court No. 05-00522                                          Page   20

            cannot unilaterally decide what requested
            information to provide. Accordingly, Huarong
            did not cooperate to the best of its ability
            with regard to the Department’s request for
            information during the course of the
            administrative review. It was only at the
            Department’s request at verification that
            Huarong acknowledged that this unreported
            movement expense was incurred for all sales
            of axes/adzes. Therefore, consistent with
            the Department’s practice in cases where a
            respondent fails to cooperate to the best of
            its ability, and pursuant to [19 U.S.C.
            § 1677e(b)], the Department finds that the
            use of partial AFA is warranted for Huarong’s
            unreported movement expense.

Issues & Dec. Mem. at 23.

       As a result of Huarong’s failure to provide the movement

expense data, Commerce

            us[ed] as an adverse inference the highest
            number of days, between the date of invoice
            and the shipment date, as the time period in
            which [the] expense . . . occurred for all
            sales in which this movement expense was not
            reported. Additionally, the Department
            [valued] this unreported movement expense for
            all sales with a publicly available Indian
            surrogate value because there is no surrogate
            value information on the record due to
            Huarong’s failure to disclose this movement
            expense.

Id.6


       6
          Specifically, Commerce stated that in calculating
Huarong’s rate for its scraper sales:

            As an adverse inference, the Department
            calculated the highest number of days [[
                 ]], between the date of invoice and the
            shipment date, from Huarong sales traced at
            verification, as the period incurred for all
                                                     (continued...)
Court No. 05-00522                                           Page    21

     Huarong contests both Commerce’s use of facts otherwise

available and its taking of an adverse inference in calculating

the dumping margin for certain of Huarong’s scraper sales.          It

argues that the application of AFA was unjustified because it

“cooperated to the best of [its] ability by reporting [its] data

as completely and as accurately as possible as can be

demonstrated by the multiple questionnaire responses submitted as

per the Department’s requests.”     Pls.’ Mem. 28.   That is, Huarong

urges that Commerce lacked a sufficient basis for applying

partial AFA to its sales of scrapers under the axes/adzes order

because Huarong eventually complied fully with the Department’s

requests for information.     See Pls.’ Mem. 28 (“The [p]laintiff[]

behaved responsibly and reported [its] sales and other data to

the best of [its] ability. [It] certainly did not refuse to

cooperate.”).


     6
         (...continued)
             sales that did not report this movement
             expense. The Department valued this
             unreported movement expense with a publicly
             available Indian surrogate value, which was
             deflated to be reflective of the POR. The
             Department took the surrogate value and
             multiplied it by the [[         ]], which was
             applied as the unreported movement expense
             incurred for all Huarong’s sales of
             axes/adzes.

Analysis for the Final Results of HFHTs from the PRC: Huarong
(ITA Sept. 6, 2005) (“Calculation Mem.”) at 9 (citations
omitted). In addition, Commerce provided the formula used in
calculating Huarong’s axes/adzes rate using partial AFA for the
unreported movement expense. See Calculation Mem. at 10–11.
Court No. 05-00522                                          Page   22

     Huarong raises a final point in support of its claim that

partial AFA were not applicable.   It contends that, “[i]f the

Department ha[d] concerns regarding the movement expenses of

these sales, . . . the Department should [have] request[ed]

further information from [r]espondents regarding these movement

expenses.”   Issues & Dec. Mem. 21.   In other words, the

Department should have voiced its concerns about the questioned

movement expense prior to verification.

     Despite Huarong’s contentions, the court finds that the

record supports Commerce’s decision to use AFA.    First, the court

finds reasonable the Department’s conclusion that Huarong

withheld requested information by not reporting all of its

incurred movement expenses.   Here, the record confirms that

Commerce, through the issuance of several questionnaires,

repeatedly asked Huarong to report its movement expenses

associated with its sales to the United States of merchandise

under the axes/adzes order, yet the Department did not learn that

Huarong shipped its goods to a domestic warehouse until

verification.   See HFHTs From PRC - Huarong’s Resp. to

Questionnaire Secs. C & D (June 9, 2004) at C-23 (“Huarong did

not ship to a distribution warehouse.”); see also HFHTs From PRC

- Huarong’s Resp. to Supplemental Sec. C Questionnaire (Aug. 13,

2004) at C-9.   While Huarong officials revealed at verification

that the company shipped all of its axes/adzes to a domestic
Court No. 05-00522                                        Page   23

warehouse prior to exporting the goods to the United States, this

late revelation does not remedy Huarong’s multiple failures to

respond fully to Commerce’s questionnaires.   See Bomont Indus. v.

United States, 14 CIT 208, 209, 733 F. Supp. 1507, 1508 (1990)

(“[V]erification is like an audit, the purpose of which is to

test information provided by a party for accuracy and

completeness.”).   Thus, because the use of facts available

requires nothing more than a respondent’s failure to provide the

Department with requested information, Huarong’s failure to

report that it shipped its goods to a domestic warehouse prior to

shipping the merchandise to the United States justified

Commerce’s reliance on facts otherwise available.

     Second, the court finds reasonable the Department’s taking

of an adverse inference in selecting from among those facts based

on Huarong’s failure to put forth its maximum effort in

responding to Commerce’s questions regarding the company’s

expenses incurred in transporting its scrapers from the factory

to the United States.   In its responses to Sections C and D of

Commerce’s questionnaire, Huarong stated that it did not ship its

scrapers to a distribution warehouse.   At verification, however,

Commerce discovered that, in fact, Huarong did ship its scrapers

to a domestic distribution warehouse prior to shipping the goods
Court No. 05-00522                                        Page   24

to the United States.7   Nothing prevented Huarong from providing

Commerce with the details of this unreported expense prior to

verification.   See Tianjin Mach. Imp. & Exp. Corp. v. United

States, 28 CIT __, __, 353 F. Supp. 2d 1294, 1305 (2004) (“A

reasonable respondent acting to the best of its ability would

have ensured that the information set forth in its . . .

questionnaire response was comprehensive.”).

     In addition, Huarong erroneously contends that, if Commerce

had concerns about Huarong’s reported (or unreported) movement

expenses, it should have asked for more information.     When

Huarong submitted the response in which it stated that it did not

ship its merchandise to a domestic warehouse prior to moving the

goods to the United States, Commerce had no reason to doubt that

statement’s accuracy.    As a result, it was not until


     7
          While verifying Huarong’s questionnaire responses:

          Analysts noted that the “Loading
          Notification” for [[         ]] states:
          [[
                                           ]]. We asked
          company officials about the [[
                  ]] and they stated that the [[


                                                    ]].
          We note that Huarong reported for all sales
          of scrapers in their Section C database that
          the goods were not sent to a[] domestic
          intermediate location . . ., including a
          distribution warehouse, before the
          merchandise was shipped to the United States.

Huarong Verification Rep. at 17.
Court No. 05-00522                                        Page   25

verification, when Commerce discovered that Huarong had not

disclosed the expense, that the Department could have been

expected to question the accuracy of Huarong’s response.     Thus,

because it had no reason to believe there were domestic warehouse

expenses prior to verification, Commerce was under no obligation

to issue a supplemental questionnaire concerning Huarong’s

movement expenses.

     It is evident, therefore, that Huarong, by withholding data

concerning its movement expenses, created a gap in the record

that Commerce rightly filled using facts otherwise available.     It

is equally apparent that Huarong failed to cooperate by doing the

maximum it could do to respond completely to Commerce’s

questionnaires.    As a result, the court sustains the Department’s

decision to account for Huarong’s unreported moving expense using

facts otherwise available and its accompanying decision to use an

adverse inference when selecting from among those facts.



          2.      Application of AFA to TMC’s Sales of
                  Picks/Mattocks: Supplier’s Factors of Production

     Next, plaintiffs maintain that the Department unlawfully

applied AFA to TMC’s sales of picks/mattocks because of its

“inability to verify one of TMC’s supplier’s factors of

production of picks/mattocks . . . .”    Pls.’ Mem. 29–30.   Because

it was unable to verify this information, the Department first

applied facts available and then used an adverse inference when
Court No. 05-00522                                         Page    26

selecting from among those facts.

     According to TMC, it had no control over the events that led

to its supplier’s factors of production data becoming

inaccessible.   TMC makes the following representations:

          On April 18, 2005, TMC officials informed the
          Department that the Tianjin Tax Authority had
          seized one of its suppliers accounting books
          and records. This event was completely out
          of TMC’s control. TMC officials could not
          have anticipated that the Tianjin Tax
          Authority would seize its supplier’s
          accounting books and records for a random tax
          audit. The Department confirmed this event
          with the supplier’s general manager.
          Moreover, because the relevant documents had
          been seized, the supplier could offer no
          alternative method to verify [its] factors of
          production.

Pls.’ Mem. 30 (emphasis & footnotes omitted).   Therefore, TMC

insists that it failed verification through no fault of its own,

and thus Commerce should not have applied AFA to TMC’s sales of

picks/mattocks.

     The Department maintains that its decision to apply AFA in

response to TMC’s failure to provide its supplier’s factors of

production information for verification was reasonable.      See

Issues & Dec. Mem. at 41 (“TMC provided factors of

production . . . data that the Department was unable to verify

for TMC’s sales of picks/mattocks.”).   First, Commerce explains

its use of facts otherwise available:

          On April 18, 2005, the day the Department
          began verification, TMC notified the
          Department that the books and records of its
Court No. 05-00522                                        Page   27

          supplier of picks/mattocks, Dagang, were
          seized by the Tianjin Tax Authority . . . .
          On April 19, 2005 the Department conducted
          verification at Dagang’s facilities to
          confirm that these records were no longer in
          the possession of Dagang and concluded that
          Dagang’s [factors of production] were
          unverifiable. As a result of the [Tianjin
          Tax Authority]’s seizure of Dagang’s FY
          2003–2004 books and records, the Department
          was unable to verify TMC’s [factors of
          production] data. In addition, as Dagang was
          TMC’s sole supplier of picks/mattocks, the
          Department does not have a verified [factors
          of production] database upon which to
          calculate a normal value. Therefore, the
          Department must rely on the facts otherwise
          available in order to determine a margin for
          TMC . . . .

Id. (footnote omitted).   Thus, for Commerce, while the Tianjin

Tax Authority’s (“TTA”) seizure of Dagang’s books and records

might have been outside of TMC’s control, it nevertheless created

a void in information necessary to the calculation of TMC’s

dumping margin that Commerce needed to fill with facts otherwise

available.   See 19 U.S.C. § 1677e(a)(D).

     With respect to its use of an adverse inference pursuant to

19 U.S.C. § 1677e(b), Commerce states:

          We find that an adverse inference is
          warranted in determining the facts otherwise
          available because TMC failed to act to the
          best of its ability for two reasons. First,
          TMC failed to notify the department in a
          timely manner that Dagang’s books and records
          had been seized. TMC did not notify the
          Department of the seizure until April 18,
          2005. The TTA seized Dagang’s books and
          records on April 1, 2005, and TMC learned of
          the seizure on April 4, 2005. On April 4,
          2005, the same date . . . TMC learned of the
Court No. 05-00522                                        Page   28

          seizure, TMC requested that the Department
          postpone verification so that TMC could
          attend the “Canton Trade Fair.” Thus, we
          have reason to question whether TMC
          misrepresented the reason for the request to
          postpone verification. In any event, on
          April 5, 2005, TMC withdrew its request to
          postpone verification, making no mention of
          the seizure of Dagang’s books and records.
          When asked why it had not informed the
          Department of the seizure, TMC responded that
          it was not “{their} concern.” As the
          Department was verifying TMC’s [factors of
          production], it was incumbent upon TMC to
          inform the Department of any issue related to
          the scheduled verification.

          Second, TMC failed to provide any alternative
          methodology to verify its factors of
          production. In the verification outline
          released to TMC, the Department advised TMC
          to make available documents relating to its
          reported [factors of production]. [19 U.S.C.
          § 1677m(c)(1)] provides that, if an
          interested party is unable to submit the
          information requested or in the requested
          form, that party is required to notify the
          Department promptly and must suggest a
          reasonable alternative. As stated above, TMC
          did not notify the Department in a timely
          manner. Nor is there any evidence that TMC
          made an effort to contact TTA to ascertain,
          for example, how long the documents would be
          held or whether the documents or copies could
          be made available to the Department. In
          addition, while the Department requested at
          verification that Dagang provide an
          alternative method of verifying its [factors
          of production], neither TMC nor Dagang were
          prepared to proffer alternatives.

Issues & Dec. Mem. at 41–42.   Thus, (1) because it found that TMC

failed to notify the Department of the seizure until

approximately two weeks after it learned that the records were

taken, and (2) because neither TMC nor Dagang made any effort to
Court No. 05-00522                                       Page   29

obtain either the factors of production data itself or provide an

alternative information source, Commerce insists that the

application of AFA was justified.    See Def.’s Resp. 14 (“An

adverse inference was warranted because a reasonable respondent

would have made some effort to ensure Commerce would be able to

verify the information that it had reported.”).

     The court finds that the record supports Commerce’s

application of AFA in constructing TMC’s factors of production

for its sales of picks/mattocks.    First, by failing to have

available for inspection information necessary to verify the

calculation of its dumping margin, TMC triggered the Department’s

use of facts otherwise available.    See Nippon Steel Corp., 337

F.3d at 1383.   That is, Commerce was unable to verify TMC’s

factors of production data and thus was required to determine

TMC’s dumping rate using facts available.

     Second, the court’s review of the record reveals substantial

support for Commerce’s use of an adverse inference pursuant to 19

U.S.C. § 1677e(b).   As previously noted, the Department may use

an adverse inference when selecting from among the facts

otherwise available if it determines that the respondent has

“failed to cooperate by not acting to the best of its ability to

comply with a request for information” from Commerce.    19 U.S.C.

§ 1677e(b).   Here, the record makes clear that TMC became aware

of the seizure of Dagang’s factors of production data on April 4,
Court No. 05-00522                                         Page   30

2005.     See Verification of Sales for TMC in the 13th Admin. Rev.

of HFHTs from the PRC (ITA May 23, 2005) at 12 (“TMC officials

stated that they did not know about this situation until April 4,

2005 when they were faxed copies of the ‘Notice on Tax

Investigation’ and ‘Notice on Holding Account Ledgers for Tax

Investigation.’”).     Rather than inform the Department of this,

TMC instead asked that verification be postponed so that it could

attend a trade fair, a request that it subsequently withdrew.

TMC only made known the fact that Dagang’s books and records had

been seized at verification, which took place two weeks after TMC

concedes it learned of the seizure.      See Issues & Dec. Mem. at

42.

      Moreover, it is clear from the record that TMC neither made

any effort to secure from the TTA copies of the seized records,

nor attempted to suggest an alternative method for calculating

the factors of production as was its right under 19 U.S.C.

§ 1677m(c)(1).8    Indeed, Commerce stated that “[h]ad TMC provided


      8
             That subsection provides:

             If an interested party, promptly after
             receiving a request from the administering
             authority . . . for information, notifies the
             administering authority . . . that such party
             is unable to submit the information requested
             in the requested form and manner, together
             with a full explanation and suggested
             alternative forms in which such party is able
             to submit the information, the administering
             authority . . . shall consider the ability of
                                                      (continued...)
Court No. 05-00522                                          Page   31

the information in a timely manner the Department may have had

time to pursue any proposed alternatives, including, for example,

alternative methods of verifying TMC’s factors of production

data . . . .”     Issues & Dec. Mem. at 42.   Thus, it is apparent

that by failing to inform the Department of the seizure, and by

making no effort to obtain copies of the documents or suggest a

potential solution to the problem, TMC did not do the maximum it

was able to do to respond to Commerce’s request.      See Nippon

Steel Corp., 337 F.3d at 1382.

     Based on the foregoing, the court finds that Commerce’s

application of AFA to TMC’s sales of picks/mattocks is supported

by the record.9



III. AFA Rates for Bars/Wedges, Axes/Adzes and Picks/Mattocks

     Huarong and TMC next claim that the rates imposed by the

Department on their sales of bars/wedges, axes/adzes and



     8
         (...continued)
             the interested party to submit the
             information in the requested form and manner
             and may modify such requirements to the
             extent necessary to avoid imposing an
             unreasonable burden on that party.

19 U.S.C. § 1677m(c)(1).
     9
          Because the court finds Commerce’s application of AFA
to Huarong and TMC to be supported by substantial evidence and in
accordance with law, it further finds without merit plaintiffs’
contention that the Department should have instead applied
combination cash deposit rates to plaintiffs’ merchandise.
Court No. 05-00522                                          Page   32

picks/mattocks as a result of the application of AFA were

unreasonable.    See Pls.’ Mem. 11–18.



       A.   AFA Rate for “Agent” Sales of Bars/Wedges

       Plaintiffs insist that even if the application of AFA to

their sales of bars/wedges as a result of their purported

“agency” relationship is warranted, the rate applied as AFA is

not.    For its part, Commerce maintains that the 139.31 percent

rate, which was taken from TMC’s calculated rate in the eighth

review of the HFHTs Orders, was reasonable.    See Issues & Dec.

Mem. at 9; see also Def.’s Resp. 16–17.    According to the

Department:

            Because the AFA rate is based on TMC’s actual
            sales data, it directly bears a “rational
            relationship” to TMC. The Department also
            finds that this rate “bears a rational
            relationship” to Huarong’s commercial
            activity because both Huarong and TMC export
            identical products covered by the bars/wedges
            order and compete for sales within the U.S.
            market.

Issues & Dec. Mem. at 10.    Thus, for Commerce, while the rate is

relevant to TMC because it was calculated using that company’s

sales data in an earlier review, the rate is equally applicable

to Huarong based on its participation in the same market as TMC.

       In addition to the rate’s relevance, the Department further

states that

            this rate is appropriate because it has been
            upheld [in Shandong Huarong General Corp. v.
Court No. 05-00522                                           Page   33

             United States, 25 CIT 1226, 177 F. Supp. 2d
             1304 (2001)] as reflective of TMC’s recent
             commercial activity in exporting bars/wedges
             to the United States. This rate is also the
             PRC-wide rate of 139.31 percent for
             bars/wedges published in the most recently
             completed administrative review of this
             antidumping duty order. Moreover, this rate
             is the highest rate in the proceeding and was
             calculated using verified information
             provided by TMC during the 8th administrative
             review of the bars/wedges order.
             Accordingly, the Department continues to find
             that this rate, instead of other recently
             calculated rates, offers a more adequate
             incentive to induce Huarong and TMC to
             cooperate in this proceeding.

Id.

      For their part, plaintiffs argue that the 139.31 percent

rate “is punitive and does not reflect a reasonable dumping

margin.”     Pls.’ Mem. 16.   In support of its position, plaintiffs

rely on this Court’s decision in Shandong Huarong General Group

Corp. v. United States, 28 CIT       , Slip Op. 05-129 (Sept. 27,

2005) (not reported in the Federal Supplement), remanding

Commerce’s decision to apply the 139.31 percent rate to the

companies’ sales of bars/wedges in the ninth administrative

review of the HFHTs Orders.     In that case, the court concluded

that the 139.31 percent rate was both aberrational and punitive.

See id. at     , Slip Op. 05-129 at 21.   On remand, Commerce

lowered the 139.31 percent to 47.88 percent.     The court sustained

this rate as both reliable and bearing a rational relationship to

the respondents.     See Shandong Huarong Gen. Group. Co. v. United
Court No. 05-00522                                        Page   34

States, 31 CIT    ,   , Slip Op. 07-4 at 8 (Jan. 9, 2007) (not

reported in the Federal Supplement) (“[T]he court finds that

Commerce has explained adequately the reliability and relevance

of the 47.88 percent rate with respect to the Companies’ sales of

bars and wedges.”).    Plaintiffs cannot discern a difference

between the facts of that review and those presently before the

court.    As a result, plaintiffs seek a remand of Commerce’s

decision to apply the 139.31 percent rate to their sales of

bars/wedges.10

     Where Commerce relies on secondary information in

determining dumping margins, it is statutorily mandated to

“corroborate that information from independent sources that are

reasonably at their disposal.”    19 U.S.C. § 1677e(c).   The

Federal Circuit has stated that “[i]t 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 some built-in increase intended as a deterrent


     10
          Plaintiffs further contend that Commerce is precluded
from using TMC’s calculated rate from the eighth review because
that rate was calculated using Indian data that plaintiffs insist
were distorted by subsidies. The court notes that: (1) plaintiff
put no actual evidence of subsidization on the record, either in
this review or during the eighth review; and (2) the issue of
subsidization was not raised during plaintiffs’ challenge to the
final results of the eighth review before this Court. See
Shandong Huarong Gen. Corp. v. United States, 25 CIT 1226, 177 F.
Supp. 2d 1304 (2001). As a result, plaintiffs are foreclosed
from making their claim now.
Court No. 05-00522                                        Page    35

to non-compliance.”     F.Lli De Cecco Di Filippo Fara S. Martino

S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000).

That is, “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.”   Id.   As this Court has held, “[a]n AFA rate must be

both reliable and bear and a rational relationship to the

respondent.”     Shandong Huarong Gen. Group Corp., 31 CIT at     ,

Slip Op. 07-4 at 9.    In other words, Commerce may not simply

select as AFA the highest possible rate as punishment for a

respondent’s unwillingness to cooperate.     See Gerber Food

(Yunnan) Co. v. United States, 31 CIT __, 491 F. Supp. 2d 1326,

1348 (2007) (“The statute does not permit Commerce to choose an

antidumping duty assessment rate as an adverse inference without

making factual findings, supported by substantial evidence.”)

(internal quotation marks & citation omitted); see also Shandong

Huarong Mach. Co., 30 CIT at      , 435 F. Supp. 2d at 1274–75.

Finally, this Court has interpreted Congress’s intent as

requiring Commerce to select an AFA rate that is both reliable

and bears a rational relationship to the respondent, not just the

industry on the whole.     See Shandong Huarong Gen. Group Corp., 31

CIT at     , Slip Op. 07-4 at 7 (“[T]he law requires that an

assigned rate relate to the company to which it is assigned.”)

(internal quotation marks & citation omitted).
Court No. 05-00522                                      Page     36

     Commerce has failed to meet these standards in making the

case for its use of the 139.31 percent rate for TMC’s and

Huarong’s sales of bars/wedges.   With respect to the “agent”

sales, Commerce has no verified information from which to

calculate an actual rate.   Thus, Commerce selected a rate from a

previous review.   In support of its application of the 139.31

percent rate to TMC, Commerce relies solely on the evidence that

the rate was calculated for TMC using that company’s own verified

information in the eighth administrative review of the HFHTs

Orders (for the period of review 1998–1999).   While Commerce has

shown that the rate, having been calculated using the

respondent’s own verified data, was reliable when calculated, it

has failed to explain how the rate is relevant to TMC’s sales

activity during the thirteenth review.   Such an explanation is

particularly warranted here where there are more recent rates for

TMC that are lower.   See, e.g., HFHTs From the PRC, 66 Fed. Reg.

48,026, 48,029 (Dep’t of Commerce Sept. 17, 2001) (final results)

(assigning TMC’s sales of bars/wedges between February 1, 1999,

and January 31, 2000, a rate of 0.56 percent); HFHTs From the

PRC, 64 Fed. Reg. 43,659, 43,671 (Dep’t of Commerce Aug. 11,

1999) (final results) (assigning TMC’s sales of bars/wedges

between February 1, 1997, and January 31, 1998, a rate of 47.88

percent).   In failing to explain how the facts and circumstances

present here justify a higher rate than those earlier reviews,
Court No. 05-00522                                         Page   37

Commerce has failed in its duty to estimate “respondent’s actual

rate” during the POR.   See De Cecco, 216 F.3d at 1032.

     With respect to Huarong, the Department does nothing more

than state that, because Huarong is involved in the same industry

as TMC, the 139.31 percent rate is relevant to Huarong.     In other

words, that rate is reflective of what Huarong’s rate would have

been had it complied, albeit with an increase intended to deter

future uncooperative behavior.   As noted, Commerce must

demonstrate that the rate it selects as a result of the

application of AFA is both reliable and relevant to the

individual respondent, not simply the subject industry as a

whole.   By merely noting that Huarong and TMC are participants in

the same industry, Commerce has not sufficiently explained how

the 139.31 percent rate relates to Huarong.   In other words, the

Department has not articulated how the 139.31 percent rate is a

reasonable estimate of what Huarong’s rate would have been had it

complied together with a built-in increase as a deterrent.

     Based on the foregoing, the court remands the issue to

Commerce with instructions to: (1) explain (a) how the 139.31

percent rate applied to TMC’s and Huarong’s sales of bars/wedges

is a reasonably accurate estimate of TMC’s actual rate with a

built-in increase to deter non-compliance and, in particular, how

that rate is more accurate than other rates calculated for TMC;

and (b) explain in detail how any rate assigned to Huarong is
Court No. 05-00522                                       Page    38

reliable and bears a rational relationship to the company itself;

or (2) reopen the record and calculate an AFA rate to be applied

to Huarong’s and TMC’s sales of bars/wedges, with an additional

amount to deter future non-compliance.



     B.   AFA Rate for Huarong’s Sales of Axes/Adzes

     As discussed supra, the Department found warranted the

application of AFA to Huarong’s sales of axes/adzes based on the

company’s failure to report fully its movement expenses, i.e.,

that Huarong failed to report that it shipped its merchandise to

a domestic storage warehouse prior to shipping the goods to the

United States.   Commerce, therefore, as it had in several prior

cases, used “as an adverse inference the highest number of days,

between the date of invoice and the shipment date, as the time

period in which [the movement expense] occurred for all sales in

which this movement expense was not reported.”   Issues & Dec.

Mem. at 23.   The Department further decided to “valu[e] this

unreported movement expense for all sales with a publicly

available Indian surrogate value because there is no surrogate

value information on the record due to Huarong’s failure to

disclose this movement expense.”   Id.   For the Department, this

method ensured that “Huarong’s margin for sales of axes/adzes was

calculated using Huarong’s information.”   Def.’s Resp. 17.     As a

result, certain of Huarong’s sales of axes/adzes received a
Court No. 05-00522                                        Page   39

calculated rate of 174.58 percent.

     Plaintiffs do not contest the Department’s methodology

employed in calculating the unreported movement expense, rather

they contend that Commerce’s reliance on Indian surrogate data is

misplaced.   Plaintiffs first state that Commerce is precluded by

its own past practice from using Indian surrogate data “because

of Indian subsidies.”    Pls.’ Mem. 11.

     In addition, plaintiffs maintain that the axes/adzes rate is

artificially inflated because of Commerce’s improper inclusion of

scraper sales.   According to plaintiffs, “[t]he Department should

have excluded scrapers from the calculated PRC-Wide and AFA rate

for axes/adzes as these rates were based solely on Huarong’s

sales of scrapers.”    Pls.’ Mem. 17.   Plaintiffs apparently

contend that, had Commerce excluded Huarong’s scraper sales, here

the sales of the MUTT scraper, the AFA rate would be

substantially lower.

     The court finds that the Department has supported with

substantial evidence its determination to use AFA to calculate

the rate applicable to Huarong’s sales of axes/adzes.     In this

case, Huarong’s failure to report the movement expense resulted

in the absence from the record of a surrogate value for that

expense.   That is, because it was not known that the expense had

been incurred, no party put a surrogate value on the record.

Commerce, therefore, relied on a publicly available Indian
Court No. 05-00522                                        Page   40

surrogate value to calculate the unreported movement expense.

While plaintiffs insist that the surrogate value Commerce

employed was distorted by subsidies, they have provided no

evidence to support their assertion.    Thus, the court cannot

credit plaintiffs’ subsidy objection.

     The court also finds no merit in Huarong’s assertion that

the inclusion of its sales of the MUTT scraper under the terms of

the order applicable to axes/adzes was in error and increased

artificially the AFA rate.   This Court has held that the MUTT is,

in fact, subject to the terms of the axes/adzes order.     See

Olympia Indus., Inc. v. United States, 30 CIT     ,    , Slip Op.

06-110 at 2–3 (July 24, 2006) (not reported in the Federal

Supplement) (“Because the MUTT’s utility as a tool comes from its

steel head with a sharp blade that can be used for cutting and

chopping, the court finds that it is a hewing tool similar to an

axe or adze and, thus, sustains Commerce’s Final Scope Ruling.”).

     Therefore, the court sustains as supported by substantial

evidence and otherwise in accordance with law Commerce’s

calculation of the 174.58 percent rate.



     C.   AFA Rate for TMC’s Sales of Picks/Mattocks

     The Department selected 98.77 percent, “the highest margin

from this or any prior segment of the proceeding,” as an AFA rate

for TMC’s sales of picks/mattocks based on the company’s failure
Court No. 05-00522                                        Page   41

to have available for inspection at verification its sole

supplier’s factors of production data.    Issues & Dec. Mem. at 43

(“The Department . . . has determined to use a rate calculated

for another respondent and the PRC-wide rate as AFA.”).    The

selected rate was first “calculated in the 5th review and

corroborated in the Final Results of the 12th review as amended.”

Final Results, 70 Fed. Reg. at 54,899; see also HFHTs From the

PRC, 62 Fed. Reg. 11,813, 11,819 (Dep’t of Commerce Mar. 13,

1997) (final results) (fifth admin. rev.); HFHTs From the PRC, 69

Fed. Reg. 55,581 (Dep’t of Commerce Sept. 15, 2004) (final

results) (twelfth admin. rev.).    In support of its decision not

to calculate a rate, Commerce explains that it “was unable to

conduct verification of the factors of production used in the

preliminary rate calculation.”    Issues & Dec. Mem. at 43.

Further, Commerce maintains that its use of a previously

calculated rate as AFA “from the current or a prior segment of

the proceeding,” renders the rate reliable.    See 19 U.S.C.

§ 1677e(c).

     For their part, plaintiffs reassert their arguments that the

selected AFA rate was calculated using subsidized prices and

bears no relation to TMC.

     While, for the reasons previously stated, the court does not

credit plaintiffs’ subsidy argument, it finds that Commerce has

not explained adequately why it selected the 98.77 percent rate
Court No. 05-00522                                      Page    42

to apply to TMC’s sales of picks/mattocks.   As previously

mentioned, “[t]he statute requires Commerce to select an

antidumping duty rate that is a reasonably accurate estimate of

the respondent’s actual rate.”   Gerber Food (Yunnan) Co., 31 CIT

at   , 491 F. Supp. 2d at 1348–49 (internal quotation marks &

citations omitted).   In addition, the rate must be both reliable

and relevant to the company to which the rate is assigned.     Here,

because Dagang was TMC’s sole supplier of picks/mattocks, the

absence of that company’s factors of production data meant that

the Department did not have verified facts to rely on in

calculating an actual rate for TMC.

     Commerce justifies the chosen rate’s reliability by stating

that it was calculated for another respondent in a prior segment

of these proceedings.   This, however, is not sufficient for the

court to find that the selected rate was a reasonably accurate

reflection of what TMC’s actual rate would be during the POR.

This is particularly the case where there have been other lower

rates recently calculated for TMC’s sales of picks/mattocks.

See, e.g., HFHTs From the PRC, 69 Fed. Reg. 55,581 (Dep’t of

Commerce Sept. 15, 2004) (assigning a 4.76 percent rate to TMC’s

picks/mattocks for February 1, 2002, through January 31, 2003);

HFHTs From the PRC, 66 Fed. Reg. 48,026, 48,029 (Dep’t of

Commerce Sept. 17, 2001) (assigning a 0.02 percent rate to TMC’s

sales of picks/mattocks from February 1, 1999, through January
Court No. 05-00522                                         Page   43

31, 2000).   The 98.77 percent rate, therefore, may not represent

a reasonable estimate of what TMC’s rate would have been had the

respondent cooperated, albeit with a built-in increase to deter

future non-compliance.   See De Cecco, 216 F.3d at 1032.    While

the record may not contain evidence sufficient to permit Commerce

to calculate an actual dumping margin for TMC, the Department

must nonetheless justify its decision to select a rate from a

prior review as an AFA rate.   In other words, the absence of

verifiable evidence does not release Commerce from its obligation

to apply an AFA rate that is reasonable, bears a rational

relationship to the respondent and reasonably reflects what the

respondent’s actual rate would have been.   Thus, Commerce must do

more than simply select a high rate from a prior review.     On

remand, the Department is instructed to: (1) explain (a) how the

98.77 percent rate for TMC’s picks/maddocks is a reasonably

accurate estimate of TMC’s actual rate with a built-in increase

to deter non-compliance; and (b) why it did not select as an AFA

rate for TMC’s sales of picks/mattocks one of the previously

assigned lower rates, albeit with a built-in increase to deter

future non-compliance; or (2) reopen the record and obtain

evidence to support an actual calculated rate for TMC’s sales of

picks/mattocks.
Court No. 05-00522                                      Page     44

                           CONCLUSION

     Based on the foregoing, the court remands Commerce’s Final

Results for further action in accordance with this opinion.

Remand results are due on November 28, 2007.   Comments on those

remand results are due on December 28, 2007.   Replies to such

comments are due on January 8, 2008.




                                   ______/s/ Richard K. Eaton
                                             Richard K. Eaton



Dated:    August 28, 2007
          New York, New York
