                        Slip Op. 00-107

       UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
                                    :
TA CHEN STAINLESS STEEL PIPE, Inc., :
                                    :    Court No. 97-08-01344
          Plaintiff,                :
                                    :
          v.                        :    Public Version
                                    :
UNITED STATES,                      :
                                    :
          Defendant.                :
____________________________________:

[Commerce remand determination affirmed.]

                                         Dated: August 25, 2000

     Ablondi, Foster, Sobin & Davidow, p.c. (Joel Davidow and
Peter Koenig) for plaintiff.

     David W. Ogden, Assistant Attorney General, David M. Cohen,
Director, Velta A. Melnbrencis, Assistant Director, Commercial
Litigation Branch, Civil Division, United States Department of
Justice (Mark L. Josephs), Cindy G. Buys, Office of the General
Counsel, United States Department of Commerce, of counsel, for
defendant.


                              OPINION

     RESTANI, Judge:   On October 28, 1999, the court remanded the

final results of the Department of Commerce, International Trade

Administration (“Commerce” or “the Department”) in Certain Welded

Stainless Steel Pipe from Taiwan, 62 Fed. Reg. 37,543 (Dep't

Commerce 1997) (final results of admin. rev.) [hereinafter "Final

Results"].   See Ta Chen Stainless Steel Pipe, Ltd. v. United

States, No. 97-08-01344, 1999 WL 1001194 (Ct. Int’l Trade Oct.

28, 1999).   Familiarity with the court’s earlier opinion is
Court No. 97-08-01344                                       Page 2


presumed.

     Commerce issued its remand determination on February 25,

2000.       See Final Results of Redetermination Pursuant to Court

Remand: Ta Chen Stainless Steel Pipe, Ltd. v. United States,

Court No. 97-08-01344 [hereinafter “Remand Results” or “RR”].        Ta

Chen contests the Department’s application of adverse facts

available and selection of the adverse margin in the Remand

Results.1

                            Standard of Review

        In reviewing final determinations in antidumping duty

investigations, the court shall hold unlawful any agency

determination found unsupported by substantial evidence on the

record, or otherwise not in accordance with law.       19 U.S.C. §

1516a(b)(1)(B)(i) (1994).

                                Background

A. Ta Chen’s Affiliation with Sun Stainless, Inc.

        In the Final Results, Commerce found that Ta Chen was

affiliated with one of its U.S. distributors, Sun Stainless, Inc.


        1
          Avesta Sheffield Inc., Damascus Tube Division,
Damascus-Bishop Tube Co., and United Steelworkers of America
(AFL-CIO/CLC), defendant-intervenors as to Ta Chen's Rule 56.2
motion, filed a stipulation of dismissal pursuant to USCIT Rule
41(a)(1)(B) and no longer appear as defendant-intervenors in this
case. See Ta Chen Stainless Steel Pipe, Ltd. v. United States,
No. 97-08-01344 (Ct. Int’l Trade Mar. 3, 2000) (stipulation of
dismissal).
Court No. 97-08-01344                                     Page 3


(“Sun”), by virtue of Ta Chen’s control over Sun, pursuant to 19

U.S.C. § 1677(33)(G) (1994).    Final Results, 62 Fed. Reg. at

37,549-50.    Because of Ta Chen’s affiliation with this U.S.

distributor, Commerce determined that Ta Chen had constructed

export price (“CEP”) sales during the period of review (“POR”).

Because Ta Chen had not provided data on Sun’s U.S. sales, the

record did not contain the information necessary to calculate

CEP.    Commerce determined that Ta Chen failed to comply to the

best of its ability in providing Sun’s U.S. sales information.

Id. at 37,552-53.    Therefore, Commerce applied partial adverse

facts available for Sun’s U.S. sales.    Id.

       The court held that Commerce’s determination that Ta Chen

controlled Sun was supported by substantial evidence.     Ta Chen,

1999 WL 1001194 at *11.    The court found, however, that Commerce

had failed to provide Ta Chen with sufficient notice of its

determination that Ta Chen controlled Sun, and that the

Department had never specifically requested the information on

Sun’s U.S. sales.    Id. at *12.   Therefore, the court held that

Commerce had failed to comply with its statutory obligation under

19 U.S.C. § 1677m(d) (1994) by failing to provide the respondent

with notice of a deficient submission before applying facts

available.    Id.   The court remanded the Final Results for

Commerce to request Sun’s U.S. sales information from Ta Chen.
Court No. 97-08-01344                                       Page 4


Id. at *14.

        On November 9, 1999, Commerce issued a supplemental

questionnaire to Ta Chen requesting information on Sun’s U.S.

sales in order to calculate CEP. RR at 2.       Ta Chen contacted

Picol Enterprises, Inc. (“Picol”) for this information. Letters

(Nov. 30, 1999), at 5, P.R. Doc. 1216, Def.’s Remand App., Tab 4,

at 5.    Sun’s owner, Frank McLane, had sold Sun to Picol

International and Masaru Kimura in July 1995.      Ta Chen’s Response

to Petitioner’s Comments (Dec. 20, 1996), at 12-14 & Ex. 3, C.R.

Doc. 14, Pl.’s Prop. App. to 56.2 motion, Tab B, at 12-14 & Ex.

3.    In response to its inquiry, Ta Chen received a letter dated

November 25, 1999, from Picol Sun’s counsel stating that it would

not cooperate with the Department’s inquiry because the company

had closed on September 30, 1996.       Letters, at 6, Def.’s Remand

App., Tab 4, at 6.       Picol Sun’s counsel stated that it no longer

maintained any business operations in the United States and that

it would be burdensome for Picol Sun to respond to the request.

Id.     Picol Sun’s counsel did state that he would ask his client

to reconsider.     Id.    On November 30, 1999, Ta Chen requested an

extension of time in which to provide the Sun information, which

the Department granted.      RR at 2.   On December 7, 1999, Ta Chen

requested another extension, but the next day it forwarded the

Department a letter from Picol Sun’s counsel stating that it
Court No. 97-08-01344                                      Page 5


would not respond to the Department’s questionnaire for the

reasons stated in the November 25, 1999 letter.     Letters (Dec. 8,

1999), at 2, P.R. Doc. 1218, Def.’s Remand App., Tab 7, at 2.

Without the information on Sun’s U.S. sales, Commerce did not

have the information needed to calculate CEP.

     Commerce concluded that because Ta Chen had withheld or

failed to provide the information requested, it would apply facts

otherwise available pursuant to 19 U.S.C. § 1677e(a) (1994).        RR

at 3.    Commerce further concluded that Ta Chen had failed to

comply to the best its ability in providing the information, and

that an adverse inference pursuant to 19 U.S.C. § 1677e(b) was

warranted for the Sun sales.     Id. at 3-4.   In calculating a

partial adverse facts available margin, Commerce “assigned the

highest calculated margin calculated for these final remand

results to be applied to Ta Chen’s sales to Sun.”     Id. at 5-6.

The sale with the highest dumping margin was 30.95 percent, which

Commerce used to recalculate the margin of 2.60 percent for Ta

Chen’s sales during the POR.     Id. at 14-15.   Ta Chen challenges

the remand determination, contesting the application of adverse

facts available and the selection of the margin.

B. Alleged Commissions to Anderson

        In its motion for judgment on the agency record, Ta Chen

challenged the Department’s finding that Ta Chen had failed to
Court No. 97-08-01344                                     Page 6


report commissions to a U.S. customer, Anderson Alloys.    In the

Final Results, Commerce had applied partial adverse facts

available to Ta Chen’s sales to Anderson.    Final Results, 62 Fed.

Reg. at 37,544.   The court found that Commerce’s finding in this

regard was not supported by substantial evidence.    Ta Chen, 1999

WL 1001194 at *16.     The court directed Commerce either to provide

Ta Chen with an opportunity to submit evidence on the purported

commissions or to disregard this issue on remand.    Id. at *17.

On remand, Ta Chen responded to Commerce’s supplemental

questionnaire, stating that it had not made any sales during the

POR on which it paid commissions to Anderson.    Remand Results at

5.   Commerce therefore did not apply facts available to Ta Chen’s

sales to Anderson upon remand.    Id.   This issue is thus no longer

before the court.

                              Discussion

I.    Application of adverse facts available

      Ta Chen contests the application of adverse facts available

to its sales to Sun, arguing that it was unable to provide Sun’s

information because of the sale to Picol International and Masaru

Kimura in July 1995.    Ta Chen argues that the Department’s remand

determination impermissibly concludes that Ta Chen is affiliated

with the new entity, Picol Sun.    Ta Chen maintains that it did

not have control over Picol Sun’s records and could not force
Court No. 97-08-01344                                       Page 7


Picol Sun to provide the necessary information.    Ta Chen states

that Department precedent does not support the application of

adverse facts when a respondent cannot obtain information from an

affiliate, but only supports the application of neutral facts

available.

     Commerce concluded that it could expect Ta Chen to provide

Sun’s information.    Commerce stated in the Remand Results:

     We are not convinced that Sun’s closure is a sufficient
     explanation as to why Ta Chen cannot develop the necessary
     information. The requested data relates to a period when Ta
     Chen and Sun were readily sharing the subject information.
     Thus, this is not a situation where one corporate entity
     would object to disclosure of confidential business
     information to another corporate entity. In this situation,
     it is reasonable to expect Ta Chen to work with Sun’s new
     owners to obtain the new information.

RR at 11.    As Commerce notes, the burden of creating an accurate

record rests with the respondent.   See Tianjin Mach. Import &

Export Corp. v. United States, 16 CIT 931, 936, 806 F. Supp.

1008, 1015 (1992) (“burden of creating an adequate record lies

with respondents and not with Commerce”) (citation omitted).

     Ta Chen does not and cannot contest the fact it had

operational control of Sun.    The court found Commerce’s

affiliation finding supported by substantial evidence due to the

numerous connections between Ta Chen and Sun.     See Ta Chen, 1999

WL 1001194 at *4-10 (discussing Ta Chen and Sun’s historical

ties, Sun’s distribution of only Ta Chen products, Ta Chen’s
Court No. 97-08-01344                                    Page 8


custody of Sun’s signature stamp, Ta Chen’s credit monitoring of

Sun, and debt financing arrangement between Ta Chen and Sun).     It

is reasonable for the Department to conclude that this

operational control gave Ta Chen access to Sun’s records.   This

conclusion is further supported by the fact that Ta Chen was able

to provide other confidential records from Sun, such as Sun’s

federal income tax records.   See Final Results, 62 Fed. Reg. at

37,552.   It is also reasonable for Commerce to expect Ta Chen to

maintain any relevant records pending the final outcome of the

administrative review.   See Krupp Stahl A.G. v. United States, 17

CIT 450, 454, 822 F. Supp. 789, 793 (1993) (stating that

respondents are responsible for maintaining their records during

a pending litigation); Koyo Seiko Co. v. United States, 16 CIT

366, 376, 796 F. Supp. 517, 525 (1992) (holding that respondent

had responsibility of keeping records for the ongoing

investigation despite Commerce’s “extraordinary delay”).    In

order to comply to the best of its ability, Ta Chen should have

preserved Sun’s information in the event that its sales were

classified as CEP.

     Ta Chen argues that it did not have reason to provide Sun’s

information until January 1997, because the Department did not

state its intention to classify Ta Chen’s sales as CEP sales

until the issuance of the Preliminary Results in January 1997.
Court No. 97-08-01344                                        Page 9


See Certain Welded Stainless Steel Pipe from Taiwan, 62 Fed. Reg.

1,435, 1,435-36 (Dep’t Commerce 1997) (preliminary results of

admin. rev.).   By that time, Ta Chen argues, it could not have

provided the information because Sun had already been sold.          Ta

Chen was nevertheless aware prior to January 1997 that its sales

to Sun were at issue.     As early as July 1994, Ta Chen knew its

relationship with Sun was at issue because the petitioners had

called it to the Department’s attention in the first

administrative review.    See Certain Welded Stainless Steel Pipe

from Taiwan, 64 Fed. Reg. 33,243, 33,244 (Dep’t Commerce 1999)

(final results of administrative review) (results from the first

and second administrative reviews of Ta Chen).    Petitioners also

renewed their concerns regarding Sun in July 1995.     Id.     Ta Chen

had reason to argue that it was not affiliated with Sun, pursuant

to the new definition of the term “affiliated party.”     Ta Chen,

1999 WL 1001194 at *14.    But Ta Chen cannot claim that it was

unaware of the possibility that its sales would be classified as

CEP sales, in light of its numerous connections with Sun.       Ta

Chen therefore could have, and should have, preserved its

information on Sun’s sales in order to provide full information

for the Department.

     Ta Chen also claims that the application of adverse facts

available is inconsistent with prior determinations.    Ta Chen
Court No. 97-08-01344                                     Page 10


cites in particular Certain Cut-to-Length Carbon Steel Plate from

Belgium, 63 Fed. Reg. 2,959 (Dep’t Commerce 1998) (final results

of antidumping duty admin. rev.)[hereinafter “Cut-to-Length from

Belgium”].   In that determination, Commerce stated it “may resort

to adverse facts available in response to [respondent’s] failure

to report [information from an affiliate] unless [respondent]

establishes that it could not compel its affiliate to report [the

information].”   Id.    Commerce chose not to make an adverse

inference in that determination because the Department had not

informed the respondent of certain deficiencies in the

respondent’s attempt to show that it could not obtain the

information from the affiliate.    Id.   Similarly, in the other

determinations cited by Ta Chen, Commerce applied a general rule

of not using adverse facts when the respondent could demonstrate

that it did try to obtain information from an affiliate.    See

Roller Chain, Other than Bicycle, from Japan, 62 Fed. Reg.

60,472, 60,476 (Dep’t Commerce 1997) (notice of final results and

partial recission of antidumping duty administrative review)

(despite respondent’s efforts, “it was not in a position to

compel the affiliated customer to produce the information

requested by the Department” and Department did not apply adverse

facts available); see also Certain Fresh Cut Flowers from

Colombia, 63 Fed. Reg. 5,354, 5,356 (Dep’t Commerce 1998)
Court No. 97-08-01344                                      Page 11


(preliminary results and partial termination of antidumping duty

admin. rev.) (Department chose not to apply adverse facts for

missing information where respondent’s “exhaustive efforts at

locating [the information from a former affiliate] . . . were

futile”); Certain Cut-to-Length Carbon Steel Plate from Brazil,

63 Fed. Reg. 12,744, 12,751 (Dep’t Commerce 1998) (final results

of antidumping duty admin. rev.) (Department did not apply

adverse inference where respondent “did attempt to obtain [COP]

information from its affiliate” and where nature of affiliation

was such that respondent could not compel affiliate to provide

information).

     On remand, Commerce applied this general rule as stated in

Cut-to-Length from Belgium.   As in that determination, the burden

was on Ta Chen to show that it could not compel Sun to provide

the information.   Ta Chen failed to meet that burden.     Upon

remand, Ta Chen simply forwarded the Department’s questionnaire

to Picol Sun, and once Picol Sun’s counsel stated that Sun did

not wish to comply, Ta Chen informed the Department that it would

be unable to provide Sun’s information.   This was not a

sufficient effort on the part of Ta Chen.   See Kawasaki Steel

Corp. v. United States, No. 99-08-00482, Slip Op. 00-91 at 22-23

(Ct. Int’l Trade, Aug. 1, 2000) (holding that respondent’s

letters requesting information from affiliate were insufficient
Court No. 97-08-01344                                      Page 12


to show respondent cooperated to best of its ability because

respondent simply acquiesced in affiliate’s refusal to provide

information).

      Ta Chen argues that it was not provided with notice that its

attempts to compel Picol Sun to provide the information were

deficient.    First, on remand time is of the essence, and parties

need to take all steps necessary to comply with Commerce’s

requests promptly and forcefully.    Second, the court cannot

conclude that one additional chance for Ta Chen to remedy its

errors would have made a difference in this case, because the

Department’s decision to apply adverse facts available is also

supported by the fact that Ta Chen could have done more to

preserve the information on Sun’s U.S. sales when it clearly had

control of the information.   By not doing so, Ta Chen failed to

comply to the best of its ability.      The court therefore affirms

the application of adverse facts available pursuant to 19 U.S.C.

§ 1677e(b).

II.   Selection of the adverse margin

      In the Final Results, Commerce applied a 31.90 percent

margin as partial adverse facts to Ta Chen’s sales to Sun and

Anderson.    Final Results, 62 Fed. Reg. at 37,555-56.    This margin

was the highest rate from the less than fair value investigation.

Ta Chen, 1999 WL 1001194 at *17.    This resulted in a weighted-
Court No. 97-08-01344                                      Page 13


average margin of 6.06 percent.   Final Results, 62 Fed. Reg. at

37,556.   The court did not address Ta Chen’s arguments concerning

corroboration of the margin from data outside the review in its

56.2 motion, in light of its remand instructions.    Ta Chen, 1999

WL 1001194 at *18.

     On remand, Commerce applied an adverse inference only as to

Ta Chen’s sales to Sun.   In recalculating the margin, Commerce

“assigned the highest calculated margin for these remand results

to be applied to Ta Chen’s sales to Sun.”    RR at 5-6.2    The

margin used was 30.95 percent, which led to a recalculated

weighted-average margin of 2.60 percent.    Id. at 15-18.    In

choosing this margin, the Department explained:

     In conducting its own analysis of Ta Chen’s U.S. sales, the
     Department found that the price and quantity of the sales
     for which a 30.95% dumping margin was calculated all fell
     within the normal range of price and quantity as the other
     sales; these sales were not unusually high or low in price
     or quantity. Furthermore, the product for which a 30.95%
     dumping margin was calculated was a normal product of Ta
     Chen’s . . . . Additionally, the Department chose the 30.95%
     rate because it was calculated from Ta Chen’s own sales.

RR at 16-17.

     Ta Chen first argues that an adverse margin is unwarranted.

Based on this assumption, Ta Chen maintains that the Department

should have followed its practice of using the weighted-average

     2
          Corroboration pursuant to 19 U.S.C. § 1677e(c) is not
challenged because Commerce selected a margin based on Ta Chen’s
own information from this review.
Court No. 97-08-01344                                    Page 14


dumping margin calculated for all of a respondent’s other sales

as the dumping margin for those sales lacking the information

necessary to calculate a dumping margin.   See Static Random

Access Memory Semiconductors from Taiwan, 63 Fed. Reg. 8,909,

8,920 (Dep’t Commerce 1998) (notice of final determination of

sales at LTFV) (“as facts available [Department] used the

weighted-average dumping margin calculated for all of

[respondent’s] other sales”).   Ta Chen acknowledges that doing so

would have resulted in a weighted-average dumping margin of close

to zero percent.   This argument fails because the use of an

adverse inference is warranted based on these facts, as already

discussed.   Commerce, therefore, was not required to use its

neutral facts available methodology.

     Ta Chen further argues that the Remand Results are contrary

to court precedent and Commerce’s own practice.    Ta Chen asserts

that the margin used by Commerce is aberrant, and that such

margins may not be used.   Under the former best information

available (“BIA”) rule, the court required Commerce to show that

the margin it selected as BIA was not aberrant.    See National

Steel Corp. v. United States, 18 CIT 1126, 1132-33, 870 F. Supp.

1130, 1136 (1994) [“NSC I”].    Ta Chen, however, misunderstands

the court’s concerns regarding aberrant margins.   The court in

NSC I did not hold that because a significant portion of
Court No. 97-08-01344                                       Page 15


respondent’s sales had margins below the selected rate, that the

selected rate was aberrant.    Rather, the court’s concern was that

Commerce show that the particular margin chosen bear a “rational

relationship” to respondent’s sales.    Id. (citation omitted).

The NSC I court thus remanded the case for Commerce to explain

why its selection of the BIA rate was not aberrant.   Id. at 1133,

870 F. Supp. at 1137.    After remand, the court accepted

Commerce’s criteria for selecting the highest non-aberrant margin

as BIA.    National Steel Corp. v. United States, 20 CIT 100, 103,

913 F. Supp. 593, 596 (1996) [“NSC II”].    Commerce’s guidelines

for selecting the highest non-aberrant margin were to choose a

margin “sufficiently adverse and . . . indicative of current

conditions.”    Id.

     After a second remand, the court upheld the specific margin

used by Commerce because the margin came from sales which

involved a common product and fell within the mainstream of

respondent’s transactions.    National Steel Corp. v. United

States, 20 CIT 743, 745-46, 929 F. Supp. 1577, 1580 (1996) [“NSC

III”].    In upholding the BIA margin, the court also noted that

“[there was] nothing in the record to indicate that [the]

particular sale was not transacted in a normal manner.”      Id.; see

also Calcium Aluminate Cement, Cement Clinker and Flux from

France, 59 Fed. Reg. 14,136, 14,141 (Dep’t Commerce 1994) (final
Court No. 97-08-01344                                     Page 16


determinations of sales at LTFV) (“When we resort to partial BIA,

it is our practice to use the highest non-aberrational margin

based on respondent’s reported sales.   This is an adverse figure,

yet is based on the respondent’s calculated margins.”)3

Commerce’s selection of the 30.95 percent margin as the adverse

rate in this case conforms to the court’s requirement that the

rate not be aberrant, because although the rate is adverse, it is

indicative of Ta Chen’s sales.

     The Department continues to use the highest non-aberrational

margin as adverse facts available.   See Stainless Steel Sheet and

Strip in Coils from Germany, 64 Fed. Reg. 30,710, 30,714 (Dep’t

Commerce 1999) (final determination of sales at LTFV) (“As

adverse facts available we have assigned the highest non-

aberrational margin calculated for this final determination . . .



     3
          Commerce certainly may not use a margin known to be
inaccurate. See D&L Supply Co. v. United States, 113 F.3d 1220,
1224 (Fed. Cir. 1997) (holding that Commerce may not use highest
margin from prior administrative review as BIA where that margin
has been “demonstrated to be inaccurate”). The margin used here,
however, is not inaccurate. It was calculated based on Ta Chen’s
own reported data. The court in D&L Supply noted that the
purpose of using the highest prior antidumping duty rate as BIA
is to “[offer] some assurance that the exporter will not benefit
from refusing to provide information, and [to produce] a . . .
rate that bears some relationship to past practices in the
industry in question.” Id. at 1223. While the margin used here
was not drawn from a prior review, the same goals are served by
using the 30.95 percent margin: Ta Chen will not benefit from
refusing to provide the information, and the margin bears a
rational relationship to Ta Chen’s selling practices.
Court No. 97-08-01344                                   Page 17


.”)   In that determination, Commerce determined the highest non-

aberrational margin by examining the frequency distribution of

the margins calculated for the respondent’s reported data.

Commerce then selected the highest margin for the 10 percent of

respondent’s transactions which fell within a specific range.

Id.   Ta Chen argues that the Department did not use this same

methodology in the remand results.   The Government acknowledges

that Commerce did not use the precise methodology as stated in

Stainless Steel Sheet and Strip in Coils from Germany, because to

have done so would have resulted in a final margin of zero

percent, thereby eviscerating the adverse inference.

      Ta Chen argues that Commerce cannot choose a facts available

margin based solely on the fact that it is the highest margin

available.   Ta Chen relies on Rhone Poulenc, Inc. v. United

States, 899 F.2d 1185 (Fed. Cir. 1990).   Rhone Poulenc, however,

supports Commerce’s position.   Analyzing Commerce’s practice

under BIA, the Federal Circuit stated that it was appropriate for

Commerce to presume that the highest prior margin was the best

information of current margins.   This presumption “reflect[ed] a

common sense inference that the highest prior margin is the most

probative evidence of current margins because, if it were not so,

the importer, knowing of the rule, would have produced current

information showing the margin to be less.”   Id. at 1190.     This
Court No. 97-08-01344                                    Page 18


reasoning also applies in this case because using the highest

calculated dumping margin provided an incentive for Ta Chen and

other respondents to produce information.

     Ta Chen also contests the Department’s characterization of

the sales with the 30.95 percent dumping margin as falling within

the normal range of price compared to other sales.   Ta Chen

states that the 0.04 percent of sales with a 30.95 percent

dumping margin were at a significantly lower price than other Ta

Chen sales.   Ta Chen Remand Br. at 28.   Commerce’s determination

that the price of the sales for which a 30.95 percent dumping

margin was calculated fell within the normal range of price as

other sales, is supported.   In comparing price, Commerce printed

lists of the twenty-one highest negative and positive margins for

Ta Chen.   The price of the sales with the 30.95 percent dumping

margin fell within the range of these prices.4   As in NSC III, 20

CIT at 746, 929 F. Supp. at 1580, there is nothing to indicate

that the sales with this particular margin were not “transacted

in a normal manner.”5

     4
          The prices for the positive dumping margins ranged from
[ ] to [ ]. Final Margin Calculations (Jan. 18, 2000), at 54,
C.R. Doc. 1269, Def.’s Remand Ex. 2, at 1. The price of the
30.95 percent sale was [ ]. Id. The prices for the negative
dumping margins ranged from [ ] to [ ]. Id. at 56, Def.’s Remand
Ex. 2, at 2.
     5
           Ta Chen also contests Commerce’s characterization of
                                                    (continued...)
Court No. 97-08-01344                                     Page 19


     Ta Chen maintains that Commerce may not use a margin where

fewer than 0.5 percent of the respondent’s sales had that margin,

because such sales are de minimis.   The Government argues that

“the number of sales with the chosen dumping margin [is not] a

factor in determining whether the margin is useable as facts

available.   Instead, Commerce seeks to determine whether the sale

on which the margin is derived is otherwise representative of a

respondent’s other sales.”   Gov’t Remand Br. at 31-32.   Ta Chen

relies on two revocation decisions for its position.   See Pure

Magnesium from Canada, 64 Fed. Reg. 50,489 (Dep’t Commerce 1999)

(final results of antidumping duty admin. rev. and determination

not to revoke order in part); Certain Corrosion-Resistant Carbon

Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate



     5
      (...continued)
the 30.95 percent sales as falling within the range of Ta Chen’s
other sales for quantity. The Government explains Commerce’s
position by noting that the quantity of the sales with the 30.95
percent margin was [ ], and the range for the other sales was
from [ ] to [ ]. Govt’ Remand Br. at 29 (referring to Ta Chen’s
data sets attached to Ta Chen’s Supplemental Questionnaire
Response (Nov. 12, 1996), C.R. Doc. 8). Given the range, this is
not a particularly telling factor; but Commerce’s other bases for
testing the margin are supportive of its choice. Further, the
highest margin selected was close to margins for other sales,
although the percentage of sales with positive margins was small.
     Ta Chen also argues that the number of sales of the product
was not typical because it only represented 2.4 percent of Ta
Chen’s POR sales. The Government states that Ta Chen made [ ]
sales of this product during the POR. Id. The Government notes
that the number of sales is substantial, “regardless of the
percentage these sales represent of Ta Chen’s total sales.”
Gov’t Remand Br. at 29.
Court No. 97-08-01344                                     Page 20


from Canada, 64 Fed. Reg. 2,173 (Dep’t Commerce 1999) (final

results of antidumping duty admin. revs. and determination to

revoke in part).   Commerce distinguished these determinations in

the Remand Results on the basis that they involved the issue of

whether dumping margins were reflective of a company’s normal

practice in the context of determining whether the sales had been

made in commercial quantities for purposes of a revocation

decision.   RR at 17.   Those determinations did not involve the

use of adverse facts available.   Commerce stated that it had

“never determined that an adverse facts available margin should

be reflective of a respondent’s actual dumping margins.    The

purpose of applying adverse facts available is to induce

respondents to cooperate with the Department’s proceedings.”     Id.

While the court does not accept Commerce’s proposition that

accuracy is not a goal when using adverse facts available,6 it

agrees with Commerce that in these particular circumstances, if

Commerce rejected Ta Chen’s sales which had positive dumping



     6
          The court has previously noted its concern that facts
available margins bear a rational relationship to the matter to
which they are applied. See Ferro Union, Inc. v. United States,
44 F. Supp.2d 1310, 1334-35 (Ct. Int’l Trade 1999) (Commerce must
select a total substitute margin which is relevant and reliable,
and bears rational relationship to matter to which it is
applied); World Finer Foods, Inc. v. United States, No. 99-03-
00138, 2000 WL 897752 at *6 (Ct. Int’l Trade June 26, 2000)
(court will not uphold use of individual transaction margins
which bear no apparent relationship to current level of dumping
in industry to corroborate a total substitute margin).
Court No. 97-08-01344                                     Page 21


margins on the ground that they were de minimis, Commerce would

not be applying an adverse inference, while still using Ta Chen’s

information, because Ta Chen would receive a zero percent dumping

margin.

     Ta Chen lastly argues that Commerce’s choice of the partial

adverse facts margin is inconsistent with the record as a whole.

Ta Chen maintains that it is unreasonable to conclude that the

partial 30.95 percent margin is indicative of Ta Chen’s actual

selling practices.   Ta Chen ignores that the methodology chosen

by Commerce was the only way to apply an adverse inference in

this case, while still using respondent’s own information.     Ta

Chen’s argument that a lower margin, of zero or 3.27 percent,7

would also serve the purpose of inducing Ta Chen to cooperate is

not persuasive.   One of the purposes of using adverse facts

available is to “ensure that the party does not obtain a more

favorable result by failing to cooperate than if it had

cooperated fully.”   Statement of Administrative Action (“SAA”),

accompanying H.R. Rep. No. 103-826(I), at 870, reprinted in 1994

U.S.C.C.A.N. 3773, 4199; see also NSC I, 18 CIT at 1132, 870 F.

Supp. at 1136 (recognizing under BIA that “although the ultimate



     7
          Ta Chen received a 3.27 percent dumping margin in the
original less than fair value investigation. Certain Welded
Stainless Steel Pipe from Taiwan, 57 Fed. Reg. 62,300, 62,301
(Dep’t Commerce 1992) (amended final determination and
antidumping duty order).
Court No. 97-08-01344                                   Page 22


purpose of BIA is not to punish, BIA is intended to be adverse”).

If Commerce had used one of the lower margins, as suggested by Ta

Chen, Ta Chen might have achieved a better result by failing to

cooperate than by cooperating and providing Sun’s information.

The SAA also states that Commerce does not have to prove that the

facts available are the best alternative information.   “Rather,

the facts available are information or inferences which are

reasonable to use under the circumstances.”   SAA at 869, 1994

U.S.C.C.A.N. at 4198.   The court therefore affirms the use of the

30.95 percent margin as partial adverse facts available,

resulting in an overall 2.60 percent margin for Ta Chen after

remand.
Court No. 97-08-01344                                   Page 23


                           Conclusion

     Commerce’s application of partial adverse facts available

and its selection of the adverse margin were in accordance with

law and supported by substantial evidence.   The remand results

are therefore affirmed in their entirety.




                                   ________________________
                                        Jane A. Restani
                                             Judge


Dated:    New York, New York

          This 25th day of August, 2000.
