                              Slip Op. 07 - 87

           UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - - - x
TA CHEN STAINLESS STEEL PIPE CO., LTD., :

                              Plaintiff,    :
                   v.
                                            :    Consolidated
UNITED STATES,                                   Court No. 05-00094
                                            :
                              Defendant,
                 -and-                      :

ALLOY PIPING PRODUCTS, INC. et al.,         :

               Intervenor-Defendants.   :
- - - - - - - - - - - - - - - - - - - - x

                              Opinion & Order


[Intervenor-defendants’ motion for judgment
 on agency record granted in part; remanded
 to the International Trade Administration.]

                                                 Decided: May 30, 2007

     Miller & Chevalier Chartered (Peter J. Koenig and Elizabeth
E. Puskar) for the plaintiff.

     Peter D. Keisler, Assistant Attorney General; Jeanne E.
Davidson, Director, Patricia M. McCarthy, Assistant Director,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Stephen C. Tosini); and Office of the Chief Counsel for
Import Administration, U.S. Department of Commerce (Kemba T.
Eneas), of counsel, for the defendant.

     Collier Shannon Scott, PLLC (Jeffrey S. Beckington               and
David A. Hartquist) for the intervenor-defendants.

          AQUILINO, Senior Judge:       This case, commenced pursuant

to   19   U.S.C.         §1516a(a)(2)(A),   consolidates    complaints
Consolidated
Court No. 05-00094                                                                  Page 2


filed by foreign manufacturer and exporter Ta Chen Stainless

Steel Pipe Co., Ltd. (“Ta Chen”), CIT No. 05-00094, and by Alloy

Piping      Products,        Inc.;     Flowline            Division       of    Markovitz

Enterprises,        Inc.;    Gerlin,   Inc.;        and    Taylor     Forge    Stainless,

Inc., which comprise the domestic U.S. industry, CIT No. 05-

00157,    each      complaint    contesting         certain       aspects      of    Certain

Stainless     Steel     Butt-Weld      Pipe     Fittings          From    Taiwan:      Final

Results     and      Final    Rescission       in        Part    of   Antidumping          Duty

Administrative        Review     published          by     the    International        Trade

Administration,        U.S.     Department      of        Commerce       (“ITA”)      at     70

Fed.Reg. 1,870 (Jan. 11, 2005).


                                           I

              That     agency    administrative             review       of    the     ITA’s

underlying antidumping-duty order, 58 Fed.Reg. 33,250 (June 16,

1993), pursuant to 19 U.S.C. §1675(a) was carried out at the

request of both sides for the period June 1, 2002 through May

31, 2003 [hereinafter the “POR”].                        The goods subject to that

order are finished and unfinished pipe fittings less than 14

inches inside diameter that are typically used to connect pipe

systems where conditions require welded connections.                            They have

a   variety    of    shapes,    including       “elbows”,         “tees”,      “reducers”,

“stub ends”, and “caps”.
Consolidated
Court No. 05-00094                                                                    Page 3


                                              A

               The record compiled during the review includes a Ta

Chen        Affiliations        Memorandum1;        the     Preliminary          Results       of

Antidumping Duty Administrative Review and Notice of Intent to

Rescind       in    Part,   69    Fed.Reg.        40,859    (July    7,       2004);    and    an

Issues and Decision Memorandum for the Administrative Review of

Stainless Steel Butt-Weld Pipe Fittings from Taiwan2.


               In its Section A3 response to the ITA’s request for

information, Ta Chen reported that it was affiliated with Ta

Chen International (“TCI”); Ta Chen (BVI) Holdings, Ltd.; Ta-Jei

Investment Co., Ltd.; Ta Ever Investment Co., Ltd.; Ta Chen

Steel       Investment      Co.,    Ltd.;     Banner       Fastener,          Inc.;    Tension

Control Bolting, Inc.; Shiziahuang Hitai Precision Casting Co.,

Ltd.; and Ta Chen Baoding Precision Casting Co., Ltd.; the same

companies          identified      in    Ta       Chen’s    previous          administrative


        1
       Intervenor-Defendants’ Appendix, Tab                          2    (June       29,   2004)
[hereinafter the Affiliations Memorandum].
        2
        Id.,         Tab    3    (Jan.   3,       2005)[hereinafter            the     Decision
Memorandum].
        3
       The Preliminary              Results,        69    Fed.Reg.       at   40,860     n.    1,
explain that
        Section A of the questionnaire requests general
        information concerning a company’s corporate
        structure and business practices, the merchandise
        under investigation, and the manner in which the
        company sells that merchandise in all markets.
Consolidated
Court No. 05-00094                                                                   Page 4


review.      See     Affiliations       Memorandum,         p.     2.         The    domestic

industry thereupon alleged Ta Chen affiliation with a number of

theretofore-unidentified             entities,          claiming            the     company’s

responses    on     affiliation       were       incomplete      and        inaccurate     and

demanding     that     the    ITA     instruct         Ta   Chen       to     disclose     all

affiliated    parties        in   Taiwan,        the   United      States,          and   third

countries.         The agency did just that, issuing a supplemental

Section A questionnaire as to Ta Chen corporate structure and

affiliation    information.           Its    response        thereto         disclosed     one

additional corporate affiliate.


             The     domestic       industry       renewed       its        allegations       of

incomplete disclosure:

     . . . Ta Chen has not put forth its maximum effort to
     respond   fully    and   accurately   to    the   . . .
     questionnaires. . . .   Ta Chen has not disclosed all
     of its affiliated parties, despite two attempts made
     by the Department to obtain this information. . . .

                                       *     *    *

     . . . Petitioners ask . . . that the Department find
     that Ta Chen has failed to exert its maximum efforts
     to cooperate in this review . . . and has actively
     misled the [ITA] in major and multiple respects,
     foremost by withholding . . . the identities and
     complete details of Ta Chen’s relationships with [its]
     affiliated U.S. companies. . . .    [T]he [ITA] should
     . . . assign [a] 76.20 percent ad valorem [dumping
     margin] to Ta Chen’s subject merchandise as total
     adverse facts available.

Record Document (“R.Doc”) 31, pp. 3-4, 25.
Consolidated
Court No. 05-00094                                              Page 5


           In    its   subsequent,   third    tender   of   information,

Ta Chen provided the ITA with corporate organizational charts,

identifying several additional potential affiliates.            It noted

that it supplied this information “just in case”, in that it did

not believe it was affiliated with them.        See R.Doc 40, p. B-1.


           Counsel for the domestic industry met with ITA staff

to discuss the affiliation issues.      The meeting precipitated the

issuance   of     a    third,   detailed,    supplemental    Section     A

questionnaire.    It noted that, given the information then on the

record, the ITA “may have reason to preliminarily find that

. . . [14] entities [in addition to the nine first identified]

are affiliated to [sic] Ta Chen.”           R.Doc 43, p. B-1.     On its

part, the respondent asserted that, from


     the outset of this review, Ta Chen has reported those
     companies that have anything to do with the subject
     merchandise stainless steel butt-weld pipe fittings,
     whether production, sales or supply of inputs. . . .
     Ta   Chen   again   submits   a   chart   illustrating
     relationships between Ta Chen and companies the [ITA]
     submits as potential affiliates. . . .     We include
     these names as an exercise of caution, and not from a
     belief on our part that they should be deemed
     affiliates[.]


R.Doc 51, pp. 1-2.
Consolidated
Court No. 05-00094                                                            Page 6


                                              B

                 The ITA’s consideration of the “complex affiliation[]

issues”4         raised   during    the    administrative      review   at     bar     is

reflected in determinations that are summarized seriatim below.


                                             (1)
                 ITA   staff’s     initial    analysis   is    set    forth    in    the
Affiliations Memorandum.             Some 31 entities, in addition to those
named       by    Ta   Chen   in   its    original   Section    A    response,      were
identified5 as potential affiliates.                 The Affiliations Memorandum



        4
        Stainless Steel Butt-Weld Pipe Fittings From Taiwan:
Exension of Time Limit for the Preliminary Results of the
Antidumping Duty Administrative Review, 69 Fed.Reg. 22,763
(April 27, 2004).
        5
       The domestic industry’s deficiency comments ultimately
identified some 17 companies as possible Ta Chen affiliates,
namely, Dragon Stainless, Inc. (“Dragon”); Millennium Stainless,
Inc. (“Millennium”); South Coast Stainless, Inc. (“South
Coast”); Southstar Steel Corporation (“Southstar”); Stainless
Express, Inc. (“Stainless Express 1”);        Stainless Express
Products, Inc. (“Stainless Express 2”); NASTA International
(“NASTA”); Estrela Steel, Inc. (“Estrela 1”); AMS Specialty
Steel, LLC SOSID #0552293 (“AMS North Carolina 1”); AMS
Specialty Steel, LLC SOSID #0654511 (“AMS North Carolina 2”);
AMS Steel Corporation (“AMS Corp.”); KSI Steel, Inc.; K Sabert,
Inc.; Sabert Investments, Inc.; Becmen, LLC; Becmen Specialty
Steels, Inc.; and Becmen Trading International, Inc.         See
Affiliations Memorandum, p. 2 n. 1.

     Ta Chen’s supplemental submissions identified Emerdex
Stainless Flat Roll Products, Inc. (“Emerdex 1”); Billion
Stainless, Inc. (“Billion”); DNC Metals, Inc. (“DNC”); Hsieh
Family Trust; and LPJR Investment, LLC as possibly-affiliated
parties. See ibid. at 3 n. 2.


                                                              (footnote continued)
Consolidated
Court No. 05-00094                                                   Page 7


considered Ta Chen’s possible affiliation with 28 of them.6                   It
grouped    them   into   two   categories:   “Entities   with    Activities
Related to the Production or Sale of Subject Merchandise” and
“Entities     Without    Apparent    Activities   Related       to    Subject
Merchandise”.      Affiliations Memorandum, pp. 4, 14.           As to the
five entities in the first group7, it determined that

     the evidence on the record . . . supports a finding
     that [those companies] were affiliated with Ta Chen
     during the entire POR.


Id. at 36.    Of the 23 companies in the second group, however, it

“found no evidence” showing that they

     had business activities . . . related to subject
     merchandise during the POR, or . . . had any known
     transactions with Ta Chen during the POR[.]     [ITA
     staff] cannot find that the relationship between Ta
     Chen and these companies had the potential to impact


     The record of a previous Ta Chen administrative review
identified PFP Taiwan Co., Ltd. (“PFP”) and AMS Specialty Steel,
Inc. (“AMS California”) as possible affiliates.        See ibid.
Seven more possibly-affiliated companies were independently
identified by the ITA, namely, Emerdex Stainless Steel, Inc.,
(“Emerdex 2”); Emerdex Group, Inc. (“Emerdex 3”); Emerdex-
Shutters   (“Emerdex  4”);   TCI  Estrela   International  (“TCI
Estrela”); Estrela LLC (“Estrela 2”); Estrela International
Corporation (“Estrela 3”); and Estrela International, Inc.
(“Estrela 4”). See ibid. at 3 n. 2 and 29 n. 24.
     6
      Citing “statutory time constraints”, ITA staff was “unable
to investigate” whether TCI Estrela, Estrela 3, and Estrela 4
were Ta Chen affiliates during the POR. See ibid. at 29 n. 24.
The staff did “note that each . . . ha[d] been dissolved or
suspended”, although it was “unaware whether they were dissolved
or suspended during the POR.” Id.
     7
         Emerdex 1, 2, 3, and 4, and Dragon.
Consolidated
Court No. 05-00094                                                Page 8


      production or pricing decisions of subject merchandise
      during the POR.      We therefore decline to examine
      whether the[se remaining] companies[8] were affiliated
      [with Ta Chen] during the POR.


Id.


                                      (2)

           The Affiliations Memorandum’s proposed findings were

adopted   by   the   ITA   in   its   Preliminary   Results,   wherein   the

agency pointed out that, as to the 23 alleged Ta Chen affiliates

without apparent activities related to subject merchandise, the

domestic industry

      ha[d] not provided evidence indicating that these
      companies were involved in subject merchandise or the
      foreign like product. . . . [It] did not support any
      allegations that the alleged affiliates were involved
      in the specialty steel product which is the subject of
      this review.


69 Fed.Reg. at 40,861-62.        Moreover,

      Ta Chen submitted rebuttal information . . . noting
      that the companies were not involved in the subject
      merchandise or foreign like product.



      8
       AMS California, AMS North Carolina 1, AMS North Carolina
2, AMS Corp., Stainless Express 1, Stainless Express 2, Estrela
1, Estrela 2, South Coast, Millennium, DNC, Billion, Southstar,
NASTA, KSI Steel, Inc., K Sabert, Inc., Sabert Investments,
Inc., Becmen, LLC, Becmen Specialty Steels, Inc., Becmen Trading
International,   Inc.,  PFP,  Hsieh   Family  Trust,   and  LPJR
Investments, LLC.
Consolidated
Court No. 05-00094                                          Page 9


Id. at 40,862.   The ITA thus reported preliminarily that

     there is no evidence [on the record] indicating that
     these [23] companies were involved in any way that
     potentially affected the production, pricing, costs,
     or sales of subject merchandise or foreign like
     product, or that these companies had any direct
     transactions with Ta Chen.     Because these companies
     were not involved in subject merchandise or foreign
     like product, it is not necessary to consider further
     whether the[y are] affiliated with Ta Chen[.]


Id. at 40,861.


            The agency did see fit to adopt preliminarily staff’s

recommendation that the Emerdex companies and Dragon be deemed

Ta   Chen   affiliates.     See   id.,   citing   the   Affiliations

Memorandum.   It found

     evidence indicating that [they] . . . were involved in
     a certain number of transactions involving subject
     merchandise. . . . The record shows that Ta Chen sold
     subject merchandise to Emerdex 2, an affiliated
     company   under  common   control  with   the  Emerdex
     Companies . . . but Ta Chen failed to report Emerdex
     2’s downstream sales of subject merchandise to
     unaffiliated customers during the POR, despite being
     instructed to [do so]. . . .      In addition, . . .
     Dragon, an affiliated company, incurred U.S. selling
     expenses for subject merchandise on behalf of Ta Chen
     . . .. Ta Chen failed to report the total amount of
     these expenses, and the record does not indicate that
     these expenses were captured in Ta Chen’s U.S. sales
     database.


Id. at 40,862.       With respect to those transactions, the ITA

applied “F[acts] A[vailable]” pursuant to 19 U.S.C. §1677e.      Id.
Consolidated
Court No. 05-00094                                                       Page 10


Moreover, “in selecting from among the facts available”, the

agency found it


        appropriate to apply an adverse inference because Ta
        Chen did not cooperate to the best of its ability to
        provide information concerning Emerdex 2 or Dragon. .
        . . As such . . . the Department has made adverse
        inferences . . . concerning (1) the Emerdex Companies’
        downstream sales of subject merchandise; and (2)
        Dragon’s selling expenses in the United States.


Id. at 40,863.


            In applying an adverse inference to Emerdex data, the

ITA accepted the domestic industry’s suggested 76.20 percent ad

valorem dumping margin as “reliable”, and thus assigned that

rate     preliminarily    for   Ta     Chen’s      known    sales   of    subject

merchandise    in   the   United     States   to   Emerdex    2.    The    agency

similarly     applied     an    adverse         inference     to    Dragon     by

“allocat[ing] the total amount of all known payments from Ta

Chen to Dragon, for its services, to the U.S. sales of subject

merchandise for which Dragon was responsible.”                 Id. at 40,864.

Ultimately, as a result of its review, the ITA preliminarily

determined that a 5.08% weighted-average dumping margin existed

for Ta Chen for the period of June 1, 2002, through May 31,

2003.    See id. at 40,866.
Consolidated
Court No. 05-00094                                                   Page 11


                                       (3)

            In the wake of the Preliminary Results, the domestic

industry advanced a new argument.            Its case brief asserted that

“[b]asic accounting concepts for the preparation of financial

statements”       require    the    disclosure     of   related   parties   on

financial     statements      and    that    the   accounting     profession’s

definition of affiliated parties is “more expansive” than the

definition contained in the antidumping statutes.                 Intervenor-

Defendants’ Appendix, Tab 7, pp. 2-3.              It thus posited that the

financial statements of Ta Chen and Emerdex 2 were “unreliable”

because they

      should have disclosed the[ir] affiliation as well as
      the purchases, sales and financing transactions by
      these   related  companies   with   one  another.   The
      financial statements . . ., however, fail to disclose
      the simple fact of the affiliation between Ta Chen and
      Emerdex [2], much less disclos[e] the financial impact
      of this relationship on their financial statements[.]

           Logically, given that [their] . . . financial
      statements   do  not   disclose   and  properly    treat
      affiliated-party transactions, and given that Emerdex
      [2]’[s] financial statements are wrong, so is the
      information derived from those financial statements[.]
      . . . In summary . . . the submitted statements . . .
      are inaccurate and unreliable, and cannot serve as
      essential source documents for the [ITA]’s review.


Id.   at   3-4.      The    domestic   industry     made   similar   arguments

concerning the financial statements of Dragon and several other

alleged affiliates, namely, Millennium, DNC, Billion, and PFP.
Consolidated
Court No. 05-00094                                            Page 12


             The ITA considered these new arguments in its Decision

Memorandum,     which   confirmed   and   augmented   the   Preliminary

Results and was adopted by reference in the Final Results.          The

Decision Memorandum concluded that, with

     regard   to   Ta    Chen’s   financial  statements,   the
     Department’s . . . affiliation definition is not
     necessarily consistent with Taiwan or U.S. Generally
     Accepted Accounting Principles (“GAAP”) definitions of
     related parties. As such, a finding of affiliation by
     the Department does not necessarily mean that such an
     affiliation should be reflected in Ta Chen’s financial
     statements.      Furthermore, [the domestic industry]
     ha[s] not demonstrated how Ta Chen’s financial
     statements are inconsistent with Taiwanese GAAP.
     Therefore, for these final results, the Department
     will   continue    to   rely   on  Ta  Chen’s   financial
     statements.


Decision Memorandum, p. 8.     The agency also

     disagree[d] with the [domestic industry] regarding
     their argument that Ta Chen was totally untimely and
     uncooperative.   Although the Department acknowledges
     that Ta Chen was not prompt in providing information
     requested . . ., the affiliation issue required
     complex research and analysis, and issuance of
     supplemental questionnaires.   Based on submissions by
     the parties and its own research, the Department
     received sufficient information regarding the alleged
     affiliates to make a determination for this review.


Id. at 35.    It found that

     the evidence on the record does not warrant total AFA
     . . . because a review of all the entities identified
     by [the domestic industry] and addressed by the
     Department in the Affiliation Memo demonstrates that
     almost all the entities did not produce, purchase, or
     sell the subject merchandise during the POR, as Ta
     Chen reported. . . . The Department finds that, with
Consolidated
Court No. 05-00094                                             Page 13


     the exception[] . . . of partial AFA[] for Emerdex 2
     and Dragon . . . applying total AFA to Ta Chen is not
     warranted in this review.    Notwithstanding Ta Chen’s
     lack of promptness in submitting information to the
     Department, the breadth of the information submitted
     was accepted by the Department as sufficient for
     making a determination. . . .     The Department finds
     that, with the exception of Emerdex 2 and Dragon . . .
     Ta Chen cooperated . . . in providing satisfactory
     data for the record and[,] therefore, total adverse
     facts available is not appropriate.


Id. at 35-36.


          The   Decision   Memorandum   reveals   that   the   ITA   ulti-

mately declined to analyze the domestic industry’s allegations

concerning 25 companies9 because there was

     no evidence on the record demonstrat[ing] that [these]
     companies’ business activities [were] related to the
     production or sale of subject merchandise during the


     9
        Millennium,   South  Coast,  DNC,   Billion,  PFP,   AMS
California, AMS North Carolina 1, AMS North Carolina 2, AMS
Corp., Stainless Express [collapsed by the ITA into one entity
in the Final Results, although considered two companies, viz.
Stainless Express 1 and Stainless Express 2, in the Preliminary
Results], Southstar, Estrela 1, Estrela 2, TCI Estrela, Estrela
3, Estrela 4, NASTA, Becmen, LLC, Becmen Specialty Steels, Inc.,
Becmen Trading International, Inc., KSI Steel, Inc., K Sabert,
Inc., and Sabert Investments, Inc.

     The Final Results do not discuss potential Ta Chen
affiliation with the Hsieh Family Trust or LPJR Investment. The
Preliminary Results, however, concluded that they “were not
involved in subject merchandise or foreign like product”.    69
Fed.Reg. at 40,862. This preliminary determination was adopted
by the Final Results, thus bringing the total number of
allegedly-affiliated companies that the ITA declined to analyze
to 25.
Consolidated
Court No. 05-00094                                         Page 14


     POR.   Additionally, the Department cannot find that
     the relationship between the[se] companies and Ta Chen
     had the potential to impact production or pricing
     decisions of subject merchandise.


Id. at 35.    The Final Results “made no changes” to Ta Chen’s

preliminary   dumping-margin   calculation,   5.08   percent.   The

instant, consolidated actions thereupon commenced.


                                 II

          Section 771 of the Trade Agreements Act of 1979, as

amended, provides that the following “shall be considered to be

‘affiliated’ or ‘affiliated persons’”:

          (A) Members of a family, including brothers and
     sisters (whether by the whole or half blood), spouse,
     ancestors, and lineal descendants.

          (B) Any officer or director of an organization
     and such organization.

          (C) Partners.

          (D) Employer and employee.

          (E) Any person directly or indirectly owning,
     controlling, or holding with power to vote, 5 percent
     or more of the outstanding voting stock or shares of
     any organization and such organization.

          (F) Two or more persons directly or indirectly
     controlling, controlled by, or under common control
     with, any person.

          (G) Any person who controls any other person and
     such other person.
Consolidated
Court No. 05-00094                                                        Page 15


       For purposes of this paragraph, a person shall be
       considered to control another person if the person is
       legally or operationally in a position to exercise
       restraint or direction over the other person.

19 U.S.C. §1677(33).


            During    an    antidumping       investigation    or    review,    the

“question of affiliation is relevant to a number of price and

cost    issues”.       Uruguay       Round    Agreements     Act    Statement    of

Administrative       Action    (“URAA-SAA”),        H.R.   Doc.     No.   103-316,

vol. 1, p. 838 (1994).        One of those issues is

       the special rule for major inputs in . . . section
       773(e)(3) . . . address[ing] diversionary input
       dumping by authorizing [the ITA] to inquire whether
       the   transfer   between   “related”   persons (i.e.,
       “affiliated” persons . . .) of such an input is at a
       price below the input’s production cost.

Id.    The issue of affiliation is also relevant when determining

whether a particular sale of merchandise occurred during the

ordinary course of trade, as sales between affiliated parties

are    disregarded    for    purposes    of    calculating    dumping     margins.

See 19 U.S.C. §§ 1677(15)(B), 1677b(f)(2).                    Consideration of

whether subject merchandise sales are to or by an affiliated

party influences the ITA’s decision whether to calculate that

merchandise’s U.S. price according to either export price or

constructed    export       price.      See    19   U.S.C.    §1677a;     Ta    Chen

Stainless Steel Pipe, Ltd. v. United States, 28 CIT ___, ___,

342 F.Supp.2d 1191, 1194 (2004).
Consolidated
Court No. 05-00094                                                          Page 16


                                            A

               The domestic industry’s Rule 56.2 Motion for Judgment

Upon    the      Agency    Record     [hereinafter       “Intervenor-Defendants’

Brief”]        raises     three    issues        with   regard     to   the     ITA’s

determinations:


                                           (1)

               Ta Chen was obligated in the underlying review to

       create an accurate record and provide the Department
       with the information requested to ensure that [it]
       could calculate accurate dumping margins for Ta Chen
       and its subject merchandise. See, e.g., Reiner Brach
       GmbH & Co. v. United States, 26 CIT 549, 558-59, 206
       F.Supp.2d 1323, 1333 (2002) . . . and 19 C.F.R. §
       351.401(b)(1). . ..


Intervenor-Defendants’            Brief,    p.    9.    The      domestic   industry

posits that this general rule applies to potential affiliation

issues because

       as to affiliates . . . the Department’s regulations at
       19   C.F.R.   §351.102(b)    implementing  19   U.S.C.
       §1677(33)’s definition of “affiliated persons,” the
       Department’s policy places the burden of proof on
       respondents, not petitioners or the [ITA].


Id.       It     cites    the     ITA’s    publication     Antidumping        Duties;

Countervailing Duties, 62 Fed.Reg. 27,296 (May 19, 1997).                         The

preamble to that rulemaking notice provides that, in determining

whether one entity controls a second, the agency should not
Consolidated
Court No. 05-00094                                                        Page 17


      ignore situations in which a control relationship,
      while relating directly to another product or another
      type of commercial activity, could affect decisions
      involving the production, pricing or cost of the
      merchandise under consideration.   Therefore, in these
      types of situations, where a control relationship
      exists, the respondent will have to demonstrate that
      the relationship does not have the potential to affect
      the subject merchandise or foreign like product.


Intervenor-Defendants’         Brief,    p.    10      (underscoring      partially

deleted;    quoting     Antidumping     Duties;      Countervailing     Duties,   62

Fed.Reg. at 27,298 [hereinafter “Preamble”]).               It insists that,

      [c]learly, the burden was Ta Chen’s to identify all of
      its   affiliations   and   related   parties  and   to
      demonstrate that these control relationships did not
      actually affect or have the potential to affect
      decisions involving the production, pricing or cost of
      the merchandise under consideration.


Id.    It    therefore    faults   the     ITA’s     “cho[ic]e    not    to   decide

whether     Ta   Chen   was   affiliated      with    a   total   of    twenty-five

companies” as being

      the reverse of what the Department’s policy and
      judicial precedent require.   As between the question
      of affiliation and the question of . . . impact on the
      merchandise under consideration, the logic of the
      Preamble   calls  for   the  former   to   be  decided
      first[.] . . . To flip the order of decision, as the
      Department did . . . was to invite Ta Chen to do as Ta
      Chen did, that is, deny in a self-serving manner that
      any of the companies alleged to be affiliated with Ta
      Chen were affiliated with a Ta Chen or had any
      involvement with Ta Chen’s subject merchandise or
      foreign like product.

Id. at 11-12.      The domestic industry complains that this approach
Consolidated
Court No. 05-00094                                        Page 18


     unjustifiably    transformed   [Ta   Chen’s]   into   [the
     domestic industry’s] burden of proof (to show that the
     alleged affiliates did actually or potentially affect
     the production, pricing or costs of the subject
     merchandise and foreign like product). . . .        [This]
     virtually guarantees . . . that the [ITA] will not
     resolve on the merits the seminal issue of affiliation
     in most or perhaps all instances, because Ta Chen, not
     [the domestic industry], is privy to the sort of
     commercially    sensitive    information   necessary    to
     document its affiliates’ involvement or not with the
     merchandise under review. . . .            [T]he [ITA]’s
     decision not to resolve the issue of affiliation for
     twenty-five alleged affiliates . . . [is] fundamentally
     flawed.


Id. at 12 (emphasis in original).     The domestic industry claims

that the agency went so far as to inconsistently misapply its

allegedly-erroneous approach in that it

     eventually found fourteen companies were affiliated
     with Ta Chen. . . .      Of these fourteen companies,
     however, the Department concluded that only three
     (TCI[10], Emerdex 2, and Dragon []) were involved with
     the subject merchandise.    Yet the [ITA] still found
     the other eleven were affiliated with Ta Chen. . . .
     In addition, the [ITA] did not ask Ta Chen to
     demonstrate . . . that these control relationships by
     Ta Chen did not have the potential to affect the
     subject merchandise or foreign like product.


Id. at 13.   The domestic industry concludes that the


     10
        The domestic industry provides no citation for its
proposition that the ITA explicitly found TCI to be involved
with the subject merchandise, although the agency did note that
TCI is “Ta Chen’s wholly-owned subsidiary” and that, due to TCI
and Dragon’s “close and intertwined business activities, it is
not clear that Dragon in substance is a different company than
TCI[.]” Affiliations Memorandum, p. 13.
Consolidated
Court No. 05-00094                                       Page 19


     ultimate effect of the [ITA]’s mishandling of Ta
     Chen’s burden of proof on affiliation was that the
     [ITA] did not uphold its statutory duty of computing
     the most accurate dumping margins it could for Ta Chen
     and Ta Chen’s subject merchandise.


Id. at 14.    The domestic industry furthermore claims that the

administrative record contains substantial evidence that Ta Chen

was in fact affiliated with certain other companies, given the

various affiliation criteria of section 1677(33)11, supra.    See

id. at 15.   It contends that

     had the [ITA] first properly decided the issue of Ta
     Chen’s affiliations . . . each such affiliation should
     have triggered scrutiny of whether the affiliation had
     an impact on the production, pricing or cost of Ta
     Chen’s [product].   Under the Preamble, it would have
     been Ta Chen’s burden to show that those affiliations
     did not have even the potential for any such impact.


Id. at 16.


     11
          The   domestic   industry    presented  company-specific
affiliation arguments to the ITA based upon multiple subsections
of 19 U.S.C. §1677. It relied upon subsection (33)(A) in making
affiliation arguments regarding PFP, DNC, and Billion; subsection
(33)(B) regarding AMS California, Millennium,    South Coast, KSI
Steel, Inc., K Sabert, Inc., Sabert Investments, Inc., Southstar,
Estrela 1 and Estrela 2; section (33)(D) regarding Stainless
Express 1, Becmen, LLC, Becmen Specialty Steels, Inc., Becmen
Trading International, Inc. and Southstar; subsection (33)(E)
regarding AMS California and AMS North Carolina 1 and 2; and
subsection (33)(F) regarding AMS California, Millennium, South
Coast, Stainless Express 1, PFP, DNC, Billion, AMS Corp., KSI
Steel, Inc., K Sabert, Inc., Sabert Investments, Inc., Becmen,
LLC, Becmen Specialty Steels, Inc., Becmen Trading International,
Inc., Southstar, NASTA, Hsieh Family Trust and LPJR Investments.
See Intervenor-Defendants’ Brief, p. 16.
Consolidated
Court No. 05-00094                                            Page 20


                                  (2)

             The domestic industry renews its argument that

     Ta   Chen’s    audited    financial  statements   were
     inconsistent with U.S. GAAP and unreliable to serve as
     a benchmark to check whether Ta Chen’s reported data
     would yield accurate dumping margins. . . . U.S. GAAP
     has a broad disclosure requirement for related parties
     and related-party transactions and . . . Ta Chen (as
     well as its various related U.S. parties) did not
     satisfy that requirement.


Id. at 17.      It complains that the ITA “said nothing at all on

this subject in . . . the Preliminary Results and only briefly

discussed this matter in connection with the final results”.

Id., citing Decision Memorandum, pp. 7-8.     It insists that this

     does not square with the [ITA]’s mandate to calculate
     Ta Chen’s dumping margins as accurately as possible.
     . . .    Nor does this dismissal square with the
     axiomatic precept that the burden was Ta Chen’s to
     establish that its audited financial statements were
     in accord with U.S. GAAP and could therefore serve as
     a reliable benchmark to check the accuracy of Ta
     Chen’s reported data.


Id. at 18.    According to the domestic industry, the

     definition of “related parties” under U.S. GAAP is
     more expansive in every respect than the antidumping
     statute’s definition of “affiliated persons”. . . .
     Put otherwise, an entity that is an “affiliated
     person” under the antidumping law almost certainly is
     a “related party” under U.S. GAAP. On the other hand,
     a “related party” under U.S. GAAP will not necessarily
     also be an “affiliated person” under the antidumping
     law. . . . Under these circumstances, the [ITA]’s
     conclusion should have been that Ta Chen’s audited
     financial statements are materially and severely
Consolidated
Court No. 05-00094                                                        Page 21


     inconsistent under U.S. GAAP due to Ta Chen’s failure
     to disclose all of its related parties and, as
     required, its related-party transactions.


Id. at 19-20.        The domestic industry views the ITA’s treatment

of Ta Chen’s financial statements as

     improperly plac[ing] the burden of proof on [it] to
     demonstrate   the   relevance   of   these disclosure
     obligations. . . . The upshot of Ta Chen’s failure to
     carry its burden of proof and provide the [ITA] with
     trustworthy financial statements is that the [ITA]
     cannot legitimately rely upon those statements . . .
     to check the accuracy of the data that Ta Chen
     reported to the [ITA] and, therefore, of dumping
     margins based upon those reported data.

Id. at 21-22.

                                     (3)

            The     domestic       industry   contends     that,       instead     of

assigning    partial       adverse   facts    available    to    Emerdex      2   and

Dragon, the ITA should have resorted to either facts otherwise

available or total adverse facts available due to Ta Chen’s

“pattern of deliberately withholding information that the [ITA]

properly sought and attempt[s] to deceive[] the [ITA].”                           Id.

at 34.      It    argues    that   the   agency’s    finding    that     Ta   Chen’s

submitted affiliation data were “sufficient” and “satisfactory”

is “not correct under the antidumping statute”.                         Id. at 24,

quoting, in part, Decision Memorandum, pp. 35-36.                   That statute

provides    for     agency     determinations       on   the    basis    of   facts
Consolidated
Court No. 05-00094                                         Page 22


available if

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

          (2) an interested party or any other person --

               (A) withholds information that has been
          requested by the [ITA] . . .,

               (B) fails to provide such information by the
          deadlines for submission of the information or in
          the form and manner requested . . .,

                (C) significantly impedes a proceeding . . .,
          or

               (D) provides such information but the infor-
          mation cannot be verified . . .[.]

                               *   *   *

          If the [ITA] . . . 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
     . . ., the [ITA] . . ., in reaching the applicable
     determination . . . , may use an inference that is
     adverse to the interests of that party in selecting
     from among the facts otherwise available.         Such
     adverse   inference  may    include reliance  on   the
     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 or determination under section 1675b          of
     this title, or

          (4)   any other information placed on the record.

19 U.S.C. §1677e(a) and (b).
Consolidated
Court No. 05-00094                                            Page 23


          The   domestic   industry   argues   that,   due   to   agency

misallocation of the burden of proof on affiliation, the ITA

     made no findings under [19 U.S.C. §§ 1677e(a)(1) and
     (2)], except as to the four Emerdex Companies and
     . . . Dragon[.] . . . The [ITA] should likewise have
     followed these same statutory provisions in deciding
     whether facts available were required as to Ta Chen’s
     other[] “alleged affiliates” . . . but [it] did
     not. . . .

          Such disregard . . . of the statute should not be
     allowed, especially given that Ta Chen did withhold
     information,    was    untimely   in    giving   other
     information[,] . . . significantly impede[d] the
     [ITA]’s administrative review, and left the Department
     with information that could not be verified.

Intervenor-Defendants’ Brief, pp. 26-27.


          The domestic industry ventures that Ta Chen’s deficient

submissions should be disregarded per 19 U.S.C. §1677m(d) and

(e), to wit:


     (d) Deficient submissions

          If the [ITA] . . . determines that a response to
     a request for information . . . does not comply with
     the request, the [ITA] . . . shall promptly inform the
     person submitting the response of the nature of the
     deficiency and shall, to the extent practicable,
     provide that person with an opportunity to remedy or
     explain the deficiency in light of the time limits
     established for the completion of . . . reviews under
     this subtitle.      If that person submits further
     information in response to such deficiency and
     either --

               (1) the [ITA] . . . finds that such response
          is not satisfactory, or
Consolidated
Court No. 05-00094                                                             Page 24


                (2) such response is not submitted within
           the applicable time limits,

      then the [ITA] . . . may, subject to subsection (e) of
      this section, disregard all or part of the original
      and subsequent responses.

      (e) Use of certain information

           In reaching a determination under section . . .
      1675 . . . the [ITA] . . . shall not decline to
      consider   information   that   is  submitted  by   an
      interested party and is necessary to the determination
      but does not meet all the applicable requirements
      established by the [ITA] . . ., if --

                (1) the information is submitted                         by    the
           deadline established for its submission,

                     (2) the information can be verified,

                (3) the information is not so incomplete
           that it cannot serve as a reliable basis for
           reaching the applicable determination,

                (4) the interested party has demonstrated
           that it acted to the best of its ability in
           providing   the   information   and meeting  the
           requirements established by the [ITA] . . . with
           respect to the information, and

                (5) the information                can     be    used    without
           undue difficulties.

It   further    hypothesizes       that,    were    the    ITA    to    have    closely

scrutinized     Ta        Chen’s   submitted       information         under    section

1677m(e), it would have found that that information could not

properly       be        considered,       given     its        untimeliness         and

unreliability.           It posits that such a finding would mandate the

application         of    facts    otherwise       available      per     19     U.S.C.
Consolidated
Court No. 05-00094                                             Page 25


§1677e(a).    See Intervenor-Defendants’ Brief, pp. 29-30.             The

domestic   industry   complains   that,   “in   deciding   against   total

facts available for Ta Chen and its subject merchandise”, the

ITA

      did not apply the statutory test . . . . Instead, the
      [ITA] said that “Ta Chen cooperated with the Depart-
      ment in providing satisfactory data for the record
      and[,] therefore, total adverse facts available is not
      appropriate.” . . . Decision Memorandum, at 36. . . .

           There is no reasonable way that cooperation by Ta
      Chen in providing satisfactory data can be said to be
      the same as the statutory test at 19 U.S.C. §1677e(b)
      that obligates a respondent to cooperate with the
      [ITA] to the best of that respondent’s ability. . . .
      In Nippon Steel Corp. v. United States, 337 F.3d 1373,
      1382 (Fed. Cir. 2003) . . . the Federal Circuit held
      that the statutory mandate that a respondent act to
      the best of its ability means that a respondent is
      required to do “the maximum it is able to do.” . . .
      [I]n order for the [ITA] to conclude that a respondent
      has been uncooperative: (i) the [ITA] must objectively
      demonstrate   that   a   reasonable  and   responsible
      respondent would have known that the requested
      information was required to be kept and maintained . .
      .; and (ii) the [ITA] must subjectively demonstrate
      that the respondent . . . both failed promptly to
      produce requested information and was not fully
      responsive due to . . . lack of cooperation either by
      failing to keep and maintain the requested information
      or by failing to put forth its maximum efforts to
      investigate and obtain the requested information from
      its records.


Id. at 32-33 (underscoring deleted).       It concludes that the ITA

      did not carry out any of the analysis called for by
      Nippon Steel[.] . . .    [H]ad the [ITA] weighed the
      issue . . . under the statutory standard, there is
      substantial evidence on the record . . . that Ta Chen
Consolidated
Court No. 05-00094                                     Page 26


     did not cooperate to the best of its ability and did
     not do the maximum it could do to answer the [ITA]’s
     questions on the core issues of Ta Chen’s affiliations
     and related parties. . . . Had the [ITA] consistently
     and properly followed the statutory standards on facts
     available and on adverse inferences, total facts
     available should have been assigned to Ta Chen as a
     matter of law.


Id. at 33, 35.


                                B

          In its response to the domestic industry’s motion for

judgment on the agency record, Ta Chen, for the first time,

raises affirmative claims12.   Stating that, if the propriety of


     12
       The defendant has moved to strike them, contending that
they are untimely and outside the scope of plaintiff’s
complaint. See generally Defendant’s Motion to Strike, pp. 2-4.

     Motions to strike are a drastic remedy that are not favored
and infrequently granted unless factors such as bad faith or
prejudice are demonstrated by the moving party.    E.g., Rhodia,
Inc. v. United States, 26 CIT 1107, 1109 and 240 F.Supp.2d 1247,
1249 n. 5 (2002). Here, the court deems plaintiff’s response as
both a request for leave to amend its complaint, which is hereby
granted, and a cross-motion for summary relief.       See, e.g.,
Vanetta U.S.A. Inc. v. United States, 27 CIT 860, 861-62
(2003)(permitting party to assert a cross-motion for summary
judgment in its response to an original motion for summary
judgment); Saarstahl AG v. United States, 20 CIT 1413, 1416-18,
949 F.Supp. 863, 866-67 (1996), quoting Foman v. Davis, 371 U.S.
178, 182 (1962)(if a party’s claim is “a proper subject of
relief, he ought to be afforded an opportunity to test his claim
on the merits” unless a factor such as undue delay, bad faith,
dilatory motive or undue prejudice is present).

     Since the defendant does not show any such negative factor,
its motion to strike should be, and it hereby is, denied.
Consolidated
Court No. 05-00094                                                 Page 27


the   ITA’s    application   of   adverse    facts   available   is   “to    be

reviewed anyway . . . a full review thereof best promotes . . .

accura[cy]”, the plaintiff takes the position that the ITA’s

application of adverse facts available to Emerdex 2 data

      was not in accordance with law or supported by
      substantial evidence.    Only 0.012% by quantity (3 of
      about 25,000 sales), and only 0.019% by value ($500 of
      a total $2,587,631.95 value of U.S. sales) of TCI’s
      [POR] subject merchandise U.S. sales[] that TCI
      reported . . . were to Emerdex.[] When dealing with
      25,000 sales, . . . Ta Chen’s failure in best
      reporting    of    three    sales    cannot   be   but
      inadvertent. . . .   Such a mistake does not call for
      adverse facts available . . ..


Plaintiff’s     Corrected    Response   to   Alloy   Piping’s    Motion     for

Judgment on the Agency Record [hereinafter “Plaintiff’s Brief”],

p. 18.   It also complains that the ITA’s resort to adverse facts

available regarding Dragon data was in error because the entity

      had nothing to do with the subject merchandise; Dragon
      sells only non-subject merchandise.[] [The ITA] cites
      no evidence otherwise in its decision.[] Yet, Commerce
      imposed adverse facts available as to Ta Chen’s
      reporting regarding Dragon on the stated (and wrong)
      basis that Dragon was involved with the subject
      fittings.[]


Id. at 18-19.

                                    III

              The court’s jurisdiction is based upon 28 U.S.C. §§

1581(c), 2631(c).       It will uphold the ITA’s determination if
Consolidated
Court No. 05-00094                                                    Page 28


supported    by   substantial       evidence     on    the   record     and     in

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

stantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”                 Consol.

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Shanghai Foreign

Trade Enterprises Co. v. United States, 28 CIT ___, ___, 318

F.Supp.2d 1339, 1345 (2004).


                                      A

            The   primary   focus    of   the    domestic    industry    is    the

ITA’s refusal to apply total adverse facts available13 to Ta Chen

subject-merchandise     sales.       It   must    be   remembered,      however,

that, in its review of the administrative record as a whole, the

court cannot

     substitute its judgment for that of the [ITA] when the
     choice is “between two fairly conflicting views, even
     though the court would justifiably have made a
     different choice had the matter been before it de
     novo.”

     13
       Although the phrase “total adverse facts available” does
not appear in either the governing statute or the agency’s
regulations,
     it can be understood . . . as referring to [the ITA]’s
     application of adverse facts available not only to the
     facts   pertaining   to   specific  sales   for   which
     information was not provided, but to the facts
     respecting all of respondents’ sales encompassed by the
     relevant antidumping duty order.

Shandong Huarong Mach. Co. v. United States, 30 CIT ___, ___ and
435 F.Supp.2d 1261, 1265 n. 2 (2006).
Consolidated
Court No. 05-00094                                                     Page 29


SKF USA Inc. v. United States, 30 CIT ___, ___, 452 F.Supp.2d

1335, 1337 (2006), citing American Spring Wire Corp. v. United

States, 8 CIT 20, 22, 590 F.Supp. 1273, 1276 (1984).                  Rather, so

long as there is an adequate basis in support of the ITA’s

choice, the court must defer to the agency.                 Nippon Steel Corp.

v. United States, 458 F.3d 1345, 1359 (Fed.Cir. 2006), reh’g

denied    (Oct.   27,    2006).      Furthermore,      in   the    absence    of   a

statutory mandate to the contrary, the ITA’s actions must be

upheld as long as they are reasonable.                 Timken Co. v. United

States, 23 CIT 509, 516, 59 F.Supp.2d 1371, 1377 (1999).


            The   statutory       directive    governing    the    ITA’s    use    of

adverse inferences in selecting among facts otherwise available

has been held to be permissive on its face.                 See, e.g., Dorbest

Ltd. v. United States, 30 CIT ___, ___, 462 F.Supp.2d 1262,

1317-18    (2006);      Co-Steel    Raritan,    Inc.   v.   U.S.    Int’l     Trade

Comm’n, 31 CIT ___, ___, Slip Op. 07-7, p. 18-19 (Jan. 17,

2007).    In   assessing     the     propriety    of    discretionary        agency

action,

     unless a party alleges that [the agency] has exercised
     its discretion in an unlawful manner . . . or that the
     factual predicates of [the agency]’s decision were
     unsupported by substantial evidence . . . th[e] court
     may not disturb [the agency]’s decision[.]

30 CIT at ___, 462 F.Supp.2d at 1319.
Consolidated
Court No. 05-00094                                                           Page 30


            Although      the    domestic      industry      is    correct    that     a

respondent must do “the maximum it is able to do” in meeting the

ITA’s    requests   for     information,       e.g.,      Nippon   Steel     Corp.    v.

United States, 337 F.3d 1373, 1382 (Fed.Cir. 2003), there is no

requirement that the ITA affirmatively

        prove that an importer cooperated to the best of its
        ability every time that the agency decides not to
        apply adverse facts available.[]  This [would] run[]
        counter to the discretion afforded to [the ITA] by
        section 1677e(b)[.]


AK Steel Corp. v. United States, 28 CIT ___, ___, 346 F.Supp.2d

1348, 1355 (2004)(emphasis in original).


            While      it       is    possible       to     conclude       from      the

administrative record herein that Ta Chen did not cooperate with

the ITA to the best of its ability, the issue of whether a

respondent has been cooperative or recalcitrant amounts to a

“line-drawing       exercise         [that]    is    precisely      the      type    of

discretion left within the agency’s domain.”                   Baoding Yude Chem.

Indus. Co. v. United States, 25 CIT 1118, 1126, 170 F.Supp.2d

1335, 1343 (2001).          Cf. Uddeholm Corp. v. United States, 11 CIT

969,     971-72,    676     F.Supp.      1234,      1237    (1987)(ITA       has     the

discretion to change its data requests, to accept certain data

or to reject the information).                Moreover, the record as a whole
Consolidated
Court No. 05-00094                                               Page 31


forms an “adequate basis” in support of the ITA’s decision14 not

to resort to total adverse facts available.               Nippon Steel v.

United States, 458 F.3d at 1359.              See also Consolo v. Fed.

Maritime Comm’n, 383 U.S. 607, 620 (“the possibility of drawing

two inconsistent conclusions from the evidence does not prevent

an   administrative      agency’s   finding   from   being   supported    by

substantial evidence”).


            In light of the above, the court cannot conclude that

the ITA’s decision not to apply total AFA was unreasonable.              The

plaintiff’s     arguments    concerning    the    ITA’s   application     of

partial adverse facts available to Emerdex 2 and Dragon fall

short for similar reasons.          Despite its characterization of its

failure    to   report    subject   merchandise   sales   to   Emerdex    as

“inadvertent”, Plaintiff’s Brief, p. 18, the ITA explained why

it viewed the omission otherwise, to wit, that,

      despite   [its]  repeated   requests  for  information
      concerning Ta Chen’s affiliates, [] Ta Chen did not
      identify certain U.S. sales of subject merchandise to
      Emerdex 2. . . .     [P]rior to the identification of
      Emerdex 2, the [ITA] requested Ta Chen to identify any
      sales of subject merchandise to Emerdex 1, an
      affiliate of Ta Chen[.] . . . Ta Chen responded that
      no sales of subject merchandise existed. . . .      Ta

      14
        In reaching its determination, the ITA considered the
“breadth of information submitted” by Ta Chen along with the
“promptness” with which it was produced. See Decision Memorandum,
p. 36.
Consolidated
Court No. 05-00094                                                          Page 32


        Chen also did not identify the sales of subject
        merchandise to Emerdex 2.   Given this opportunity to
        identify sales to affiliated parties, Ta Chen chose to
        interpret the [ITA]’s question in the narrowest
        possible manner[.]


Decision Memorandum, p. 11 (emphasis in original; quoting in

part the Preliminary Results, 69 Fed.Reg. at 40,863).                            In thus

explicitly stating why Ta Chen’s reporting of incomplete sales

data was something more than an inadvertent omission, the ITA

fulfilled       its   duty   to   articulate      why    it    concluded    that     the

plaintiff failed to act to the best of its ability.                    Cf. Allegheny

Ludlum Corp. v. United States, 24 CIT 1424, 1445, 215 F.Supp.2d

1322,    1341    (2000),     citing   Mannesmannrohren-Werke          AG    v.    United

States, 23 CIT 826, 841, 77 F.Supp.2d 1302, 1315 (1999). See also

China Steel Corp. v. United States, 27 CIT 715, 735, 264 F.Supp.2d

1339, 1360 (2003)(to apply an adverse inference the ITA must find

either    a   willful    decision     not   to    comply      with   its   request    or

behavior below the standard for a reasonable respondent).


              The record at bar contains substantial evidence that the

plaintiff’s failure to report Emerdex 2 as an affiliate that dealt

in   subject     merchandise,     and   its      sales   of    subject     merchandise

thereto, was not “excusable inadvertence [rather] a demonstration

of a lack of regard for its responsibilities in the investigation.”
Consolidated
Court No. 05-00094                                                   Page 33


Allegheny Ludlum Corp. v. United States, 24 CIT at 1445, 215

F.Supp.2d at 1341.         That the data ultimately disclosed by the

plaintiff revealed that its sales to Emerdex 2 comprised only a

small percentage of its sales of subject merchandise does not

change this fact.15


           The     court    also    cannot   find     error    in   the   ITA’s

determination that Dragon was involved with subject merchandise.

In   considering   that    issue,   the   agency    referred   to   substantial

evidence consisting of

      thousands of sales observations of subject merchandise
      reported in Ta Chen’s section C database [that] were
      sold through [Dragon] facilities during the POR.
      Therefore, the record shows that Dragon’s selling
      activities included responsibility for these sales.

      The record evidence does not support Ta Chen’s
      argument that Dragon had no activities related to
      subject merchandise.     Rather, the record indicates
      that Dragon incurred U.S. selling expenses related to
      subject merchandise on behalf of Ta Chen. . . . Thus,
      Ta Chen’s relationship with Dragon has the potential
      to impact pricing decisions of subject merchandise.
      Ta Chen’s submissions regarding Dragon have been
      wholly inadequate in consideration of the [ITA]’s
      mandate to calculate a dumping margin which accounts
      for Ta Chen’s U.S. selling expenses.

      15
        Compare Mannesmannrohren-Werke AG v. United States, 23
CIT 826, 850-52, 77 F.Supp.2d 1302, 1322-24, which applied the
maxim de minimis non curat lex (“the law cares not for trifles”)
when presented with a respondent’s figures that were of a
“limited nature”, with Decision Memorandum, p. 11 (discussing Ta
Chen’s failure to disclose a potential affiliate and sales
thereto in response to repeated and pointed ITA questioning).
Consolidated
Court No. 05-00094                                                       Page 34


Affiliations Memorandum, pp. 13-14.             The ITA concluded that

        Ta Chen failed to provide . . . information in a time-
        ly manner or in the form or manner requested under the
        antidumping statute. . . .    [T]he information on the
        record regarding . . . Dragon . . . was ultimately
        obtained from Ta Chen only after the [ITA]’s multiple,
        detailed and specific requests.      Nonetheless, this
        information was not disclosed to the [ITA] in a timely
        manner and Ta Chen was less than forthcoming about the
        nature of its affiliation and business transactions
        with Dragon[.]


Decision Memorandum, p. 19, citing Affiliations Memorandum.


            In light of the above, it cannot be said that the

ITA’s    decision      to    apply   partial    adverse      facts   available   to

Dragon     was   not        in   accordance    with    law     or    supported   by

substantial evidence.


                                         B

            The court cannot fault the ITA’s decision to consider

Ta   Chen’s      financial        statements.         The     agency    reasonably

determined that their failure to disclose Ta Chen affiliates did

not render them unreliable.


            The domestic industry’s arguments to the contrary echo

those raised in Kaiyuan Group Corp. v. United States, 29 CIT

___, 391 F.Supp.2d 1317 (2005), wherein plaintiff China First

challenged the ITA’s decision to find it affiliated with another
Consolidated
Court No. 05-00094                                              Page 35


entity   under    section   1677(33)(F).     China    First    relied    on

International Accounting Standards to argue that,

     since [the alleged affiliate was] not listed in [its]
     financial statements, and because outside auditors
     certified [its] financial position, the two companies
     are not affiliated and therefore should not be
     collapsed.


29 CIT at ___ and 391 F.Supp.2d at 1324 n. 13.                 The ITA’s

response therein was a familiar one, to wit, there was

     no basis for concluding that the [International
     Accounting Standards] govern whether, for purposes of
     antidumping reviews, companies should be collapsed
     under Commerce’s regulations.


29 CIT at ___ and 391 F.Supp.2d at 1324-1325 n. 13.           Siding with

the ITA, the court in Kaiyuan Group Corp. agreed that the

     issue before the agency and the Court [wa]s not
     whether,   for   accounting   purposes,    [the  alleged
     affiliate]   should   be  considered    [China  First’s]
     subsidiary or associate; rather, the question [wa]s
     whether Commerce’s decision to collapse the two
     companies, pursuant to Commerce’s regulations, is
     supported by substantial evidence.


29 CIT at ___ and 391 F.Supp.2d at 1325 n. 13 (emphasis in

original; internal quotation marks deleted).


          Because     the   antidumping    laws,    along   with   agency

implementing     regulations,   alone   establish    the    criteria    for

determining whether parties are affiliated, their resemblance
Consolidated
Court No. 05-00094                                                        Page 36


to, or possible overlap with, U.S. or foreign GAAP standards are

not   of   conclusive   moment.        As   the   ITA   succinctly        stated   in

Notice of Final Determination of Sales at Less Than Fair Value;

Certain    Hot-Rolled    Flat-Rolled        Carbon-Quality        Steel    Products

From Brazil, 64 Fed.Reg. 38,756, 38,769 (July 19, 1999),

      the similarity between the Brazilian GAAP’s definition
      of a “related party” and the Act’s definition of an
      “affiliated party” is irrelevant. A similarity in the
      definition of two words does not necessarily give them
      the same meaning, especially when applied in different
      circumstances.

In concurring therewith, this court cannot disagree with the

ITA’s conclusion in the review at bar that

      a finding of affiliation by the [ITA] does not
      necessarily mean that such an affiliation should be
      reflected in Ta Chen’s financial statements.

Decision Memorandum, p. 8.           The agency properly determined that

those financial statements’ failure to list affiliated entities

as “related parties” does not render them inherently unreliable.


            Moreover,    the   ITA’s      decision    to   rely    upon    audited,

home-country    GAAP-compliant       financial       statements     in    gathering

cost-of-production      data   was   in     accordance     with    the    law16    and



      16
       See 19 U.S.C. §1677b(f)(1)(A), which provides that cost
of production and constructed value

      shall normally be calculated based on the records of
      the exporter or producer of the merchandise, if such
                                                           (footnote continued)
Consolidated
Court No. 05-00094                                             Page 37


agency practice17.   In fact, the Court of International Trade

     has consistently upheld Commerce’s reliance on a firm’s
     expenses   as   recorded   in  the   firm’s    financial
     statements, as long as those statements were prepared
     in accordance with the home country’s GAAP and do not
     significantly distort the firm’s actual costs.


FAG U.K. Ltd. v. United States, 20 CIT 1277, 1290, 945 F.Supp. 260,
271 (1996)(citations omitted).        See also Laclede Steel Co. v.

United States, 18 CIT 965, 974-975 (1994); URAA-SAA, p. 834.


          Commerce   is   generally    given   the   benefit   of   “wide

latitude” in the verification procedure it chooses to implement.

Pohang Iron and Steel Co. v. United States, 23 CIT 778, 796

(1999), citing American Alloys, Inc. v. United States, 30 F.3d

1469, 1475 (Fed.Cir. 1994).   Accordingly, the court

     defers to the agency’s sensibility as to the depth of
     the inquiry needed. In the absence of evidence in the
     record suggesting the need to examine further the


     records are kept in accordance with the generally
     accepted   accounting  principles   of  the exporting
     country (or the producing country, where appropriate)
     and reasonably reflect the costs associated with the
     production and sale of the merchandise.
     17
       See, e.g., ITA Final Determination of Sales at Less Than
Fair Value: Canned Pineapple Fruit From Thailand, 60 Fed.Reg.
29,553, 29,559 (June 5, 1995) (“the Department’s practice is to
adhere to an individual firm's recording of costs in accordance
with GAAP of its home country if the Department is satisfied
that such principles reasonably reflect the costs of producing
the subject merchandise”).
Consolidated
Court No. 05-00094                                                     Page 38


     supporting evidence itself, the agency may accept the
     credibility of [a] document at face value.


Id. at 797.


            The   administrative      record    shows    that   the    ITA   was

satisfied     that   Ta    Chen’s     financial    statements         reasonably

reflected its costs of production.18           The court finds no error in

the ITA’s reliance thereon.


                                       C

            A claim that two entities are affiliated within the
                                                   19
meaning of 19 U.S.C. §1677(33)(F) and (G)               turns on whether one

entity “controls” another.        The statute provides that

     a person shall be considered to control another person
     if the person is legally or operationally in a position
     to exercise restraint or direction over the other
     person.

     18
       See, e.g., Decision Memorandum, pp. 7-8. Although the ITA
did not exhaustively explain its decision to rely on the
financial statements at issue, its decisional path in this regard
is “reasonably discernable” from the record. See, e.g., Wheatland
Tube Co. v. United States, 161 F.3d 1365, 1369-70 (Fed.Cir.
1998).
     19
        To repeat,        those     subsections    state    that   affiliated
persons are:

          (F) Two or more persons directly or indirectly
     controlling, controlled by, or under common control
     with, any person.
          (G) Any person who controls any other person and
     such other person.
Consolidated
Court No. 05-00094                                                    Page 39


19 U.S.C. §1677(33).      ITA regulations further provide:


     . . .     In determining whether control over another
     person exists . . ., the Secretary will consider the
     following factors, among others: corporate or family
     groupings; franchise or joint venture agreements; debt
     financing; and close supplier relationships.          The
     Secretary will not find that control exists on the
     basis of these factors unless the relationship has the
     potential    to   impact    decisions    concerning   the
     production, pricing, or cost of the subject merchandise
     or foreign like product.     The Secretary will consider
     the temporal aspect of a relationship in determining
     whether     control    exists;     normally,    temporary
     circumstances will not suffice as evidence of control.

19 C.F.R. §351.102(b).


            In   TIJID,   Inc.    v.   United   States,   29   CIT   ___,   366

F.Supp.2d   1286   (2005),       plaintiff   TIJID   alleged   that    it   was

affiliated with another party pursuant to subsections 1677(33)(F)

and (G).    In reviewing the ITA’s underlying negative affiliation

determination, the court held that, to find affiliation under 19

U.S.C. §1677(33)(F),

     two elements must be satisfied . . ..       First, two
     parties must be legally or operationally in a position
     to exercise restraint or direction over a third party.
     . . .   Second, the relationship with the third party
     must have the potential to impact decisions concerning
     the production, pricing, or cost of the subject
     merchandise.

29 CIT at ___, 366 F.Supp.2d at 1293, citing Mitsubishi Heavy

Indus., Ltd. v. United States, 23 CIT 326, 335-36, 54 F.Supp.2d
Consolidated
Court No. 05-00094                                                             Page 40


1183, 1192 (1999).            The court additionally found that 19 C.F.R.

§351.102(b) was a “reasonable [agency] interpretation” of section

1677(33)’s       requirement        that   a    person     considered     to    control

another person be “legally or operationally in a position to

exercise restraint or direction over the other person” whereby

control over another

     exists only when “the relationship has the potential to
     impact decisions concerning the production, pricing, or
     cost of the subject merchandise or foreign like
     product.”

29   CIT    at    ___,   366     F.Supp.2d       at    1298,   quoting     19    C.F.R.

§351.102(b) (emphasis added).                  Because the potential to affect

decisions concerning the production, pricing, or cost of subject

merchandise      is   the     sine   qua   non    of   “control”,    as    reasonably

interpreted by the ITA, such potential must be established for a

finding of affiliation-by-control “within the meaning of section

771(33) of the Act”.           19 C.F.R. §351.102(b).


             Although the party responding to an ITA investigation
has the burden of creating an adequate record, e.g., NSK Ltd. v.
United States, 20 CIT 361, 369, 919 F.Supp. 442, 449 (1996);

Zenith     Elecs.     Corp.    v.    United      States,    988   F.2d    1573,    1583

(Fed.Cir. 1993), the TIJID court clarified that, in

     order for Commerce to find that affiliation exists, the
     party    alleging    affiliation   must    successfully
     demonstrate that [the] elements [of affiliation] have
     been fulfilled.
Consolidated
Court No. 05-00094                                                     Page 41


29 CIT at ___, 366 F.Supp.2d at 1293 (emphasis added).                    In that

case, a party alleging affiliation “failed to demonstrate that

[companies under its purported control] were involved in sales of

the subject merchandise.”            29 CIT at ___, 366 F.Supp.2d at 1295.

The court held that, given the absence of such proof, the ITA

“reasonably concluded that [those companies] did not have the

potential       to     impact        decisions    concerning     the      subject

merchandise.”        Id.


              This court does not read the ITA Preamble as altering

this paradigm.        Rather, the relevant portion relied upon by the

domestic      industry      simply    clarifies    that,   should   the    agency

determine that a “control relationship” exists,
       the respondent will have to demonstrate that the
       relationship does not have the potential to affect the
       subject merchandise or foreign like product.


62 Fed.Reg. at 27,298.          It does not obviate the requirement that

a party alleging affiliation affirmatively make its case based
                                                           20
upon    the   record       created    by   the   respondent .       Rather,   the



       20
         While the domestic industry’s asserted frustration
regarding what it perceives to be an incomplete record may be
understandable, it is up to the ITA to “assure itself that it
has asked questions sufficient to provide it with enough
information to make [an] affiliation determination[.]” Ta Chen
Stainless Steel Pipe, Ltd. v. United States, 23 CIT 804, 820
(1999).    To that end, the agency “has an obligation to make




                                                           (footnote continued)
Consolidated
Court No. 05-00094                                                            Page 42


Preamble    announces       agency   policy21    to     allow   a    respondent     the

opportunity    to   offer      evidence      demonstrating      lack     of    control

following an agency determination that a “control relationship”

exists.     Such an approach was employed by the ITA in the case at

bar.

            Because     a    party    must      prove    each       element    of   its
                                  22
allegations concerning affiliation , the ITA’s analysis of the


[questionnaire] questions affected by affiliation issues clear,
in light of its own recognition that affiliation is a complex
concept[.]” Id.
       21
        Although the Court of Appeals for the Federal Circuit
(“CAFC”) has not decided the question generally of whether a
regulatory preamble is an agency determination entitled to
Chevron deference, see, e.g., Alloy Piping Prods., Inc. v. Kanzen
Tetsu Sdn. Bhd., 334 F.3d 1284, 1290 (Fed.Cir. 2003), the Court
of International Trade has held specifically with regard to this
preamble that,
     although it was issued after the notice-and-comment
     rulemaking procedure that went into 19 CFR § 351.107,
     [it] is a policy statement, and not an agency
     interpretation that holds the “force of law”, such as
     would be entitled to deference[.]
Tung Mung Dev. Co. v. United States, 25 CIT 752, 769 (2001).
       22
       In its reply brief, the domestic industry for the first
time asserts that the ITA, in determining affiliation-by-
control, has established a “policy” of first considering whether
an entity is “legally or operationally in a position to exercise
restraint” over another, and only thereafter reaching the
question of whether the relationship of the entities in question
has the “potential to impact decisions relating to subject
merchandise.” Reply Brief by Alloy Piping, p. 3. The domestic
industry rests this argument upon statements made by the ITA in
the agency’s papers filed with the court in TIJID. Id., citing
TIJID, Inc. v. United States, 29 CIT at ___, 366 F.Supp.2d at
1298-99.




                                                            (footnote continued)
Consolidated
Court No. 05-00094                                      Page 43


domestic industry’s affiliation-by-control claims23 herein did no

violence to the statutory scheme.   And the court finds no error

in the ITA’s conclusion that no further affiliation analysis was

necessary concerning companies alleged to be affiliated with Ta

Chen by virtue of “control” pursuant to subsections 1677(33)(F)



     Notwithstanding the fact that arguments raised for the first
time in a reply brief are not properly before the court, see,
e.g., United States v. Ford Motor Co., 463 F.3d 1267, 1276-
77 (Fed.Cir. 2006), reh’g denied (Nov. 22, 2006), this court does
not view the isolated statement of agency procedure referred to
in TIJID as establishing a practice to which the ITA must adhere
in subsequent proceedings.   See Ranchers-Cattlemen Action Legal
Found. v. United States, 23 CIT 861, 884-85, 74 F.Supp.2d 1353,
1374 (1999) (“An action . . . becomes an ‘agency practice’ when a
uniform and established procedure exists that would lead a party,
in the absence of notification of change, reasonably to expect
adherence to the established practice or procedure”); Shandong
Huarong Machinery Co. v. United States, 30 CIT at ___,        435
F.Supp.2d at 1282 n. 23 (2006)(two prior determinations are not
enough to constitute an agency practice binding the ITA).
Moreover, having rejected the domestic industry’s burden-shifting
argument, the court notes that the order in which the elements of
control are addressed by the ITA has no impact upon the
dispositive   question   of   whether   a   party   “successfully
demonstrate[s] that [the] elements [of affiliation] have been
fulfilled.”   TIJID, Inc. v. United States, 29 CIT at ___, 366
F.Supp.2d at 1293.
     23
        The domestic industry identifies its subsection 33(F)
control-based   affiliation   claims  as   pertaining   to   AMS
California, Millennium, South Coast, Stainless Express 1, PFP,
DNC, Billion, AMS Corp., KSI Steel, Inc., K Sabert, Inc., Sabert
Investments, Inc., Becmen, LLC, Becmen Specialty Steels, Inc.,
Becmen Trading International, Inc., Southstar, NASTA, Hsieh
Family Trust, and LPJR Investments.   See Intervenor-Defendants’
Brief, pp. 15-16.
Consolidated
Court No. 05-00094                                                    Page 44


and (G) when it could not find

     evidence on the record demonstrating that [those]
     companies’ business activities [were] related to the
     production or sale of subject merchandise during the
     POR [or] . . . that the relationship between [those]
     companies and Ta Chen had the potential to impact
     production or pricing decisions of subject merchandise.


Decision Memorandum, p. 35.


            The    ITA’s    individual   determinations     as   to    whether

companies alleged to be affiliated with Ta Chen by virtue of

control   had     activities   related   to   the   production   or    sale   of

subject   merchandise       are additionally supported by substantial

evidence.    The agency is presumed to have considered all record

evidence and comments thereon in reaching its determinations,

absent some showing to the contrary.           See, e.g., Bethlehem Steel

Corp. v. United States, 28 CIT ___, ___, 316 F.Supp.2d 1309,

1316-17 (2004).


            The    record    shows   that,    for   each   alleged    Ta   Chen
affiliate, the ITA considered and weighed evidence probative of

whether that entity was involved with the subject merchandise.

See Decision Memorandum, pp. 20-36.           It reveals adequate evidence

to support the agency’s individual determinations, despite the

existence of some conflicting evidence.              Hence, the court will
Consolidated
Court No. 05-00094                                                     Page 45


not disturb the ITA’s determinations, for it is unquestionably

the “role of the expert factfinder . . . to decide which side’s

evidence to believe.”           Nippon Steel Corp. v. United States, 458

F.3d at 1359.        See also Hercules, Inc. v. United States, 11 CIT

710,   721,    673   F.Supp.     454,   466 (1987)(“Clearly,     it    is   within

Commerce’s discretion to make reasonable interpretations of the

evidence and to determine [its] overall significance”)(internal

quotation omitted).


                                          D

              The ITA’s analysis of those entities alleged to be Ta

Chen affiliates within the meaning of 19 U.S.C. §1677(33)(A)-(E),

however,      cannot       withstand    similar    scrutiny.      In    Crawfish
Processors Alliance v. United States, 477 F.3d 1375, 1379-80

(Fed.Cir. 2007), the court held that the standard for affiliation

set forth in 19 U.S.C. §1677(33)(E) is unambiguous.                         In the

administrative review underlying that matter, the ITA considered

possible      affiliation      between    the     Fujian   and   Pacific     Coast
corporations.        The

       record show[ed] that Fujian owned and exercised more
       than 5% of Pacific Coast’s public shares during the
       [POR], an amount sufficient to establish affiliation
       [per 19 U.S.C. §1677(33)(E)]. . . .        Nonetheless,
       Commerce discounted the evidence of ownership because
       the record showed no evidence of Fujian making a
       transfer of cash or merchandise into Pacific Coast.
Consolidated
Court No. 05-00094                                           Page 46


477 F.3d at 1378.    The appellants contended therein that the ITA

had erroneously interpreted the affiliation statute to require

the transfer of cash or merchandise to show direct or indirect

ownership of 5% or more of the shares of an organization.              The

CAFC agreed, holding that subsection (33)(E)

     clarifies,    in  quite   broad   terms,   that   owning,
     controlling, or holding, “directly or indirectly,” over
     5% of an entity’s stock constitutes “affiliation.”
     This court detects no ambiguity in that standard.        .
     . . To prove affiliation, neither the statute nor the
     regulations require evidence of the transfer of cash or
     merchandise to prove that a person directly or
     indirectly owns at least 5% of an organization’s
     shares.   Likewise,   neither   the   statute   nor    the
     regulations require the transfer of cash or merchandise
     to show that a person holds, with power to vote, 5% or
     more   of    the  outstanding   voting    stock    of   an
     organization. . . .       [W]hen requiring Fujian and
     Pacific    Coast   to   provide   evidence    that    “the
     merchandise sold by Pacific Coast originated from
     Fujian,” . . . Commerce made demands beyond the
     requirements of the statute.


Id. at 1380-81. See also Mitsubishi Heavy Indus., Ltd. v. United
States, 22 CIT 541, 572, 15 F.Supp.2d 807, 832 (1998) (ITA’s

affiliation analysis erroneous because it required a greater
showing than mandated by statute).


          Similarly,   this   court   discerns   no   ambiguity   in    19

U.S.C. §1677(33)(A)-(E).      The first four lettered subsections

plainly do not premise affiliation upon “control”.       In fact, that

word is nowhere found therein.         The same cannot be said of
Consolidated
Court No. 05-00094                                                        Page 47


subsection (E), which refers to “owning, controlling, or holding”

stock     or   shares   in    a    second   organization.       Nevertheless,   as

Crawfish       Processors      Alliance      makes   clear,     control    is   not

indispensable to a finding of affiliation under subsection (E);

proof of ownership or holding the requisite amount of stock may

suffice24.      See 477 F.3d at 1381.             This court concurs with the

reading of section 1677(33) articulated in Hontex Enterprises,
Inc. v. United States, 27 CIT 272, 291, 248 F.Supp.2d 1323, 1339

(2003), to wit, that entities

     are “affiliated” where they share either certain
     relationships, such as by family, shared company
     officers,   directors,    partners,   employer/employee
     status, or cross-ownership of voting stock, see 19
     U.S.C.   §   1677(33)(A)-(E),   or  share   any   other
     relationship by which one entity is “legally or
     operationally in a position to exercise restraint or
     direction over the other”.


Emphasis added; footnote, citations omitted.                    Cf. China Steel

Corp. v. United States, 27 CIT at 724, 264 F.Supp.2d at 1350-51;

Plaintiff’s      Brief,      pp.    7-8,    13.   The   plain   and   unambiguous


     24
       The court also notes that subsection (E), on its face,
does not contemplate a situation whereby a person exercises
“control over another person [] within the meaning of section
771(33) of the Act”.   19 C.F.R. §351.102(b).   Rather, it deals
with the control of stock or shares. This contrasts sharply with
the language of subsections (F) and (G), which refer to “[t]wo or
more persons . . . controlling . . . any person” and “[a]ny
person who controls any other person and such other person”,
respectively.
Consolidated
Court No. 05-00094                                           Page 48


language25 of 19 U.S.C. §1677(33) instructs that, to successfully

prove affiliation under subsections (A)-(E), a party need only

show the existence of one of the standards specified therein.

The statute does not require that a party show that entities

allegedly affiliated by virtue of those subsections be either

involved with or related to the production or sale of subject

merchandise or in a relationship that has the potential to impact

production or pricing decisions of subject merchandise. And the

ITA erred in requiring the petitioners to make such a showing in

the   review   herein.   See    Antidumping   Duties;   Countervailing

Duties, 61 Fed.Reg. 7,308, 7,311 (Feb. 27, 1996)(“the statute

provides that if any one of the factors in section 771(33) is

present, the Department is required to find that persons are

affiliated”)(emphasis added).



      25
         Although   the    defendant   argues  that   “statutory
interpretations articulated by Commerce during its antidumping
proceedings are entitled to judicial deference” under Chevron
U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984), the court does not read the administrative record at bar
as containing any particular agency interpretation of 19 U.S.C.
§1677(33). In any event, because Congress has “directly spoken”
to the precise question at issue, “that is the end of the
matter; for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress.” Id. at 842-
43.   See also Dus & Derrick, Inc. v. U.S. Sec’y of Agric., 31
CIT ___, ___, 469 F.Supp.2d 1326, 1333 (2007).
Consolidated
Court No. 05-00094                                                     Page 49


                                         IV

              Despite the ITA’s analytical misstep(s), the record,

such as it is, provides little indication that administrative

reconsideration thereof will necessarily lead to a modification

of plaintiff’s antidumping-duty rate.             If, as the plaintiff and

the defendant assert, the entities allegedly affiliated with Ta

Chen within the meaning of 19 U.S.C. §1677(33)(A)-(E) were in

fact uninvolved with the subject merchandise, a finding on remand

of affiliation would not have any impact thereon.                    And a court

need not require an agency redetermination if doing so “would be

‘futile’ by virtue of having no effect on the result of the

case.”    E.g., Ammex, Inc. v. United States, 28 CIT ___, ___, 341
F.Supp.2d 1308, 1314 n. 12 (2004).


              Nonetheless,    both    the     agency    and    the    court    are

constrained to give effect to the unambiguously-expressed intent

of Congress, and the court therefore hesitates to conclude that

agency   reconsideration      of   the    domestic     industry’s    unsatisfied

affiliation claims would be futile.             The ITA has discretion on

remand to request and evaluate new data.               See, e.g., NTN Bearing

Corp.    of   America   v.   United   States,    25    CIT    118,   124-25,   132

F.Supp.2d 1102, 1107-08 (2001)(citations omitted).                    And it is

not absolutely certain that affirmative affiliation determina-
Consolidated
Court No. 05-00094                                                               Page 50


tions        on    remand      would    have     no    effect    upon   the    plaintiff’s

antidumping-duty rate.                 For instance, such a finding could cause

the agency to scrutinize affiliated-entity sales data26, leading

to   identification             of     affiliated-party         transactions    involving

subject merchandise.                  The propriety of such steps can only be

determined         by    the    ITA,     which    must    reconsider     on    remand   the

“complex affiliation issues” presented by this case.


                                                 A

                  In    view     of     the    foregoing,        intervenor-defendants’

Motion for Judgment on the Agency Record should be granted to the

extent        of       remand    to      the     ITA    to   complete     its     analysis

concerning those entities affiliated with Ta Chen within the



        26
        Such action is contemplated by the Department of
Commerce’s Import Administration Antidumping Manual (1997),
chapter 8, page 96 of which notes that, in

        order to identify the manufacturer, producer or
        exporter of the merchandise, [the ITA] require[s] the
        recipients   of  [its]   questionnaires   to  see  that
        affiliated companies also report their sales. . . .
        [I]t is necessary for respondents to report sales by
        affiliated companies to ensure that [the ITA’s] . . .
        review covers the applicable U.S. and home market sales
        of the class or kind of merchandise. We cannot ensure
        that we have adequately investigated applicable sales
        of the merchandise subject to investigation unless
        affiliates companies’ sales are reported.
Consolidated
Court No. 05-00094                                       Page 51


meaning of 19 U.S.C. §1677(33)(A)-(E)27.   Plaintiff’s request for

related relief, on the other hand, should be, and it hereby is,

denied.


           The defendant may have until August 3, 2007 to carry

out that analysis and report the results thereof to the court and

the parties, which may comment thereon on or before August 17,

2007.

           So ordered.
Decided:   New York, New York
           May 30, 2007




                                  /s/ Thomas J. Aquilino, Jr.
                                         Senior Judge




     27
         The   domestic  industry’s   papers  assert,  and   the
administrative record so indicates, that it relied upon
subsection (33)(A) in pressing affiliation arguments regarding
PFP, DNC, and Billion; upon subsection (33)(B) regarding AMS
California, Millennium, South Coast, KSI Steel, Inc., K Sabert,
Inc., Sabert Investments, Inc., Southstar, Estrela 1 and Estrela
2; upon subsection (33)(D) regarding Stainless Express 1,
Becmen, LLC, Becmen Specialty Steels, Inc., Becmen Trading
International, Inc., and Southstar; and upon subsection (33)(E)
regarding AMS California and AMS North Carolina 1 and 2.     See
Intervenor-Defendants’ Brief, pp. 15-16.
