Certain Welded Stainless Steel Pipe from Taiwan
Final Results of Redetermination
Pursuant To Court Remand
Ta Chen Stainless Steel Pipe. Ltd.
v.
The United States and Avesta Sheffield, Inc., et al.

Court No. 97-08-01344, Slip Op. 99-117 (Ct. Int'l Trade October 28, 1999)

FINAL RESULTS OF REDETERMINATION PURSUANT TO COURT REMAND

SUMMARY:

On October 28, 1999, the United States Court of International Trade ("Court") remanded the final results of the 1994-1995 administrative review of Certain Welded Stainless Steel Pipe from Taiwan to the Department of Commerce ("Department") on two issues: (1) to give Ta Chen Stainless Steel Pipe. Ltd. ("Ta Chen") an opportunity to submit information on Sun Stainless, Inc.'s ("Sun") U.S. sales; and (2) to give Ta Chen an opportunity to submit evidence on any sales to Company C that were made during the POR and on which commissions were paid to Anderson Alloys ("Anderson"). For these final remand results, the Department has provided Ta Chen an opportunity to submit information on these two issues. Additionally, the Department has recalculated the margin which it applied as partial adverse facts available. For a more detailed explanation of each item, see the Department's discussion section, infra. Ta Chen submitted comments to the Department's draft remand results on February 7, 2000.

BACKGROUND:

On July 14, 1997, the Department published its final results in the third administrative review of certain welded stainless steel pipe from Taiwan ("WSSP" or "subject merchandise"). Final Results of Antidumping Administrative Review; Certain Welded Stainless Steel Pipe From Taiwan, 62 FR 37543 (July 14, 1997) ("Final Results"). The administrative review proceeding covered imports of subject merchandise during the period December 1, 1994 through November 30, 1995.

DISCUSSION:

Information on Sun: In the Final Results, the Department determined that Sun was affiliated with Ta Chen, because Ta Chen had operational control over Sun by virtue of Ta Chen's ability to exercise restraint or direction over Sun within the meaning of 19 U.S.C. 1677(33). The Department applied an adverse facts available margin to Ta Chen's constructed export price ("CEP") sales to Sun because of Ta Chen's failure to provide information on Sun's U.S. sales. See Final Results, 62 FR at 37552. The Court upheld the Department's determination that Ta Chen and Sun are affiliated, but held that the Department had not given Ta Chen adequate notice of that determination and that it did not provide Ta Chen with an opportunity to provide information on Sun's U.S. sales before classifying such sales as CEP sales. See Slip-Op. 99-117 at 39-41.

Pursuant to Court remand, on November 9, 1999, the Department issued a supplemental questionnaire to Ta Chen requesting, inter alia, information on Sun's U.S. sales for the period of review ("POR"). On November 30, 1999, Ta Chen requested an extension of time in which to provide information on Sun's U.S. sales. Ta Chen submitted a November 25, 1999 letter from Sun's counsel stating that Sun's position as of that time was not to cooperate with the Department's inquiry because Sun had closed as of September 30, 1996. Counsel further stated that Sun does not currently maintain any business operation in the U.S. and it would be burdensome and costly to respond to the Department's request. However, Sun's counsel stated that he would ask his client to reconsider. On December 2, 1999, the Department granted Ta Chen's request for an extension of time, in order to allow Ta Chen additional time to procure a response from Sun. On December 7, 1999, Ta Chen requested a further extension. However, on December 8, 1999, Ta Chen informed the Department that Sun would not be responding to the Department's supplemental questionnaire. Ta Chen attached a second letter from Sun's counsel stating that Sun would not respond to the Department's questionnaire for the reasons indicated in his November 25 letter.

Section 776(a) of the Tariff Act of 1930, as amended (the "Act"), states that where necessary information is not available on the record or an interested party withholds information that has been requested by Commerce, fails to provide such information in the time or manner requested, significantly impedes the proceeding, or provides information that cannot be verified, Commerce shall use the facts otherwise available in reaching its determination. 19 U.S.C. 1677e(a). In this remand, Ta Chen has withheld or failed to provide the information requested regarding Sun's U.S. sales despite repeated notification of the deficiency under section 782(d) of the Act. 19 U.S.C. 1677m(d). Accordingly, the Department must use the facts otherwise available.

Section 776(b) of the Act further provides that where Commerce finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from Commerce, Commerce may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available. 19 U.S.C. 1677e(b). Such adverse inference may include reliance on information derived from the petition, a final determination in the investigation, any previous review or determination, or any other information placed on the record. Id. In this case, the Department has determined that the application of an adverse inference is appropriate because Ta Chen has failed to act to the best of its ability in responding to the Department's request for information regarding Sun's U.S. sales.

This Court has upheld the Department's determination that Ta Chen is affiliated with Sun and had control over Sun based, inter alia, on their close-supplier relationship, TCI's (a wholly-owned U.S. subsidiary) custody of Sun's signature stamp, Ta Chen's unlimited access to Sun's computer database containing Sun's accounts receivable, accounts payable, inventory and pricing information, and its participation in the negotiations of Sun's sales of WSSP. See Slip Op. 99-117 at 23, 33-35. Thus, it has already been established that Ta Chen had operational control over Sun and had access to its sales and pricing data. Ta Chen knew that Sun's U.S. sales were an issue both in the administrative review and in this litigation and that there was a possibility that Ta Chen would be requested to provide those records once again. Indeed, it was Ta Chen who had argued that it had not been given an adequate opportunity to produce Sun's records. Accordingly, Ta Chen should have taken steps to obtain and preserve the relevant records. It cannot now rely on the fact that Sun is no longer in business to justify its failure to produce the necessary documentation. Even where there is evidence showing that an affiliated party is unwilling to cooperate in providing information necessary to determine constructed export price, the burden of producing the information requested by Commerce rests with the parties that possess that information. Notice of Final Determination of Sales at Less Than Fair Value: Hot-Rolled Flat-Rolled Carbon-Quality Steel Products from Japan, 64 FR 24329, 24368 (May 6, 1999) ("Hot-Rolled from Japan"). Thus, Ta Chen's and Sun's failure to produce these records constitutes a failure to act to the best of their ability. Accordingly, the Department has concluded that the use of an adverse inference is appropriate in selecting among the facts otherwise available with respect to Sun's U.S. sales.

In applying adverse facts available to Sun's U.S. sales, the Department used Ta Chen's own data to develop the appropriate rate to be used as facts available. See Recalculation of Weighted-Average Margin section, infra.

Sales to Anderson: In the Final Results, the Department determined that Ta Chen failed to act to the best of its ability in reporting its U.S. sales to one of its customers, Company C, and commissions paid to Anderson on these sales. Because this lack of data meant the Department could not segregate such sales for the final margin calculation, it applied adverse facts available to all Ta Chen's sales to Company C/Anderson. The Court held that the Department's finding that Ta Chen misreported its sales to Company C is not supported by substantial evidence, as it was unclear whether such sales fell within the relevant POR. Pursuant to Court remand, on November 9, 1999, the Department issued a supplemental questionnaire to Ta Chen requesting, inter alia, information on sales to Company C and on the commissions paid to Anderson on such sales for the relevant POR, as well as the three months preceding and the two months following. On November 30, 1999, Ta Chen responded that there were no such sales during the indicated period. Thus, for these final remand results, we have not applied our facts available methodology to these sales based on Ta Chen's statement that it paid no commissions to Anderson on Company C sales. See Recalculation of Weighted-Average Margin section, infra.

Recalculation of Weighted-Average Margin: The Department has reconsidered the appropriate margin to be used as adverse facts available in this remand determination, and has decided to use data taken directly from information Ta Chen previously submitted in this review for purposes of calculating an adverse facts available margin. In accordance with the Department's past practice, as adverse facts available, we have assigned the highest calculated margin calculated for these final remand results to be applied to Ta Chen's sales to Sun. See Notice of Final Determination of Sales at Less Than Fair Value; Stainless Steel Sheet and Strip in Coils from Germany; 64 FR 30710, 30714 (June 8, 1999), and Final Determination of Sales at Less Than Fair Value: Calcium Cement and Cement Clinker and Flux from France, 59 FR 14136,14141 (March 25, 1994). In choosing the sale with the highest calculated margin, we compared this sale to other Ta Chen sales by price, product, and quantity and found this sale to be similar to Ta Chen's other sales. Therefore, we find that this sale is indicative of Ta Chen's customary selling practices and that this sale's margin is appropriate for use as an adverse facts available rate. In applying this new rate, the Department has recalculated the dumping margin for Ta Chen. See Final Results of Redetermination section, infra; see also the Department's Margin Calculation Program (February 25, 2000).

INTERESTED PARTY COMMENTS ON THE DEPARTMENT'S DRAFT RESULTS

Comment 1: Sun Sales/Adverse Facts Available

Respondent argues that the Department's adverse inference in its draft remand results with regard to Sun sales is unlawfully based on Sun's failure to provide requested data because Sun was not affiliated with Ta Chen at the time the Department's request was made because Sun was no longer in business. Ta Chen asserts that the Department did not request Sun sales until November 9, 1999, and Ta Chen did not have access to Sun's data at that time due to Sun's closure. Additionally, respondent contends that the Department changed its decision-making process for affiliated parties during the administrative review and, as a result, requested Ta Chen to describe its relationship with Sun. Thereafter, the Department determined that Sun was an affiliate of Ta Chen. Respondent argues that, from that point forward, the Department has imposed adverse facts available to Ta Chen for its failure to provide Sun's sales.

Respondent contends that the Court has ruled that it is unlawful to impose adverse facts available on a respondent for failure to provide information that is not in the respondent's control, citing, Ad Hoc Comm. of AZ-NM-TX-FL Producers of Gray Portland Cement v. U.S., 18 CIT 906, 915 (1994), aff'd 68 F.3d 487 (Fed. Cir. 1995) ("Ad Hoc Comm"); Asociacion Colombiana de Exportadores de Flores v. U.S., Slip Op. 99-24 at 19 (Ct. Int'l Trade March 16, 1999)("Asociacion Colombiana"); Mannesmannrohren-Werke Ag and Mannesmann Pipe & Steel Corp. v. U.S., Slip Op. 99-118 at 23-24 (Ct. Int'l Trade October 29, 1999) ("Mannesmannrohren"). Also, Ta Chen cites to a Departmental decision in which the Department allegedly did not apply adverse facts available because the respondent could not obtain information from its affiliated customer. See Final Results and Partial Recission of Antidumping Duty administrative Review; Roller Chain, Other Than Bicycle from Japan, 62 FR 60472, 60476 (November 10, 1997) ("Roller Chain"). Moreover, Ta Chen asserts that past Departmental practice has stated that if an affiliate closed, then adverse facts available could not be imposed for failure of that affiliate to provide resale information. See Final Results, 62 FR at 37552 and cases cited therein. Respondent further states that the Department has not explained its rationale for its departure from its practice. Additionally, respondent notes that the Department's reliance on Hot-Rolled from Japan, 64 FR at 24368, for applying adverse facts available is misplaced because, in that case, the respondent was in a position to provide the requested data from its existing affiliate. Respondent also states that the draft remand results failed to provide any guidance as to how Ta Chen could have obtained Sun's data.

Respondent argues that it could not have provided Sun's sales even if it had been requested earlier because Sun was sold to an unaffiliated party in July 1995. Thus, the Department had no authority to impose adverse facts available because Ta Chen could not obtain Sun's data. Further, respondent argues that there is no evidence on the record that Ta Chen can compel Sun to provide Sun's data. Therefore, respondent asserts that the Department use of adverse facts available is not lawful because there is no evidence on the record that Ta Chen failed to act to the best of its ability to provide Sun's data as stated in the Department draft remand.

Department's Position: We disagree with respondent. As we stated in the draft remand results, the Court upheld the Department's determination that Ta Chen and Sun are affiliated predicated on the fact that Ta Chen had control over Sun based on, inter alia, Ta Chen's access to Sun's computer system containing its pricing information, its participation in the negotiations of Sun's sales of subject merchandise, and TCI's custody of Sun's signature stamp. See Slip-Op. 99-117 at 23, 33-34 and Discussion Section of these Remand Results. Additionally, the Court stated in its opinion that: "Commerce's determination that Ta Chen controlled Sun is supported by substantial evidence. Even if each of the individual connections between Ta Chen and Sun, standing alone, may not be sufficient to establish control, Commerce's conclusion that the numerous connections between Ta Chen and Sun were indicative of control was reasonable. Commerce did not rely on any one factor in concluding that Ta Chen and Sun were affiliated parties, rather, it determined that the combination of factors was sufficient proof of affiliation." See Slip Op. 99-117 at 32. Thus, Ta Chen may not re-argue whether it is affiliated with Sun. It is clear that at the time the sales were made, Ta Chen and Sun were affiliated.

Ta Chen was found to be affiliated with Sun throughout the POR based on operational control, not stock ownership. Thus, Ta Chen's argument regarding Sun's sale to an unaffiliated party in July 1995 is irrelevant. There is no evidence on the record indicating that this change in ownership in any way affected Ta Chen's operational control over Sun.

Furthermore, in the "Corporate Structure and Affiliations" section of the initial Section A questionnaire that was issued in February 1996 Commerce specifically requested Ta Chen to report companies affiliated through means other than stock ownership. See Department's Initial Questionnaire dated February 13, 1996. Ta Chen was specifically instructed to contact Commerce "[i]f you are uncertain whether a company is affiliated with you . . ." Id. at G-6. In addition, the new definition of "affiliated person" from the URAA was included in the Glossary of Terms at Appendix I. Therefore, in its initial questionnaire, Commerce clearly and specifically asked Ta Chen to report parties affiliated with it through control, the nature of the affiliation, and the first sales to unaffiliated purchasers in the United States. Additionally, the Department instructed Ta Chen to contact the Department immediately if it should have any questions concerning the affiliated party provision.

Ta Chen had notice that its relationship with Sun in particular, raised a question with the Department as to affiliation at least as early as October 1996. Commerce issued a supplemental questionnaire to Ta Chen on October 22, 1996. In this supplemental questionnaire, among other questions, Commerce asked Ta Chen to "explain in detail your relationship, past and present, with all entities known as Sun Stainless or Sun Stainless, Inc." Commerce's first supplemental questionnaire, C.R. 6 (Oct. 22, 1996), Exhibit 3 at 7. Ta Chen responded to this supplemental questionnaire on November 12, 1996. After explaining that Ta Chen had done business with [ ](1) and Sun Stainless, Inc. (incorporated by Frank McLane, a former board member of Ta Chen), Ta Chen stated that it "assumed that the question was asked because the Department seeks information that might bear upon whether [ ] or Frank McLane's Sun Stainless was affiliated with" Ta Chen or Ta Chen International. Ta Chen's response to the first supplemental questionnaire, C.R. 8, Exhibit 4, at 35-36. Thus, even though Sun allegedly closed in September 1996, Ta Chen knew its potential affiliation with Sun was an issue in the ongoing review and that it might eventually be asked to produce documentation regarding Sun's sales.

Although the Court held that these questionnaires were not sufficient for Ta Chen to have notice that the Department would determine Ta Chen and Sun to be affiliated, the questionnaires did at least put Ta Chen and Sun on notice that their relationship was an issue in the administrative review. Thus, Ta Chen should have taken steps to obtain and preserve the relevant records in case the Department determined Ta Chen and Sun to be affiliated. In addition, Ta Chen certainly has known since the Department's preliminary results of this case that the Department considered Ta Chen and Sun affiliated parties. Ta Chen cannot now argue that it could not provide Sun's sales because Sun is no longer in business. Ta Chen had direct access to Sun's sales information during the POR given its unusually close relationship with Sun and control over Sun. Ta Chen requested the review of sales made during the POR in December 1995, shortly after Sun's change in ownership, and well before Sun's closure. As stated above, Ta Chen should have taken steps at that time to obtain and preserve information relating to sales during the POR including Sun's sales information. Further, Ta Chen has never stated that Sun's records do not exist, only that Sun is no longer in business. In fact, Sun's attorney has stated on the record that Sun is choosing not to cooperate. See Letter from Ta Chen to the Department dated November 25, 1999.

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 information.

Ta Chen cited three court cases, Ad Hoc Comm., Asociacion Couumbiana and Mannesmannrohren in support of its position that the Department unlawfully applied adverse facts available for its failure to provide Sun's U.S. sales. We respectfully disagree with Ta Chen's interpretation of these cases. While each of these cases referred to the application of adverse facts available in the general sense, none of the cases actually decided the issue of a respondent's ability to obtain relevant information from an affiliated party. Additionally, Ta Chen cited Roller Chain as supporting its position that the Department need not apply adverse facts available when the respondent is unable to obtain the information from an affiliated party. Again, we disagree with respondent's characterization of this case as being on point. First, we are able to distinguish Roller Chain from this current administrative review, because in Roller Chain the respondent was attempting to obtain home market downstream sales. While home market downstream sales are important to the Department's overall analysis for arm's length and comparison purposes, even without these sales we are still able to perform our dumping analysis. However, without the appropriate U.S. sales, we are not able to establish if the subject merchandise is being sold in the U.S. market at a price lower than is charged in the domestic market. Second, in Roller Chain, we determined that affiliation was based on a percentage of stock ownership, whereas in this case we determined affiliation on the fact that Ta Chen actually controls the day-to-day operations of Sun. Stock ownership does not automatically grant the entity holding the stock control of a company, while, here, Ta Chen was found to exercise operational control over Sun.

In light of Ta Chen's failure to provide the requested information, the Department has continued to rely on adverse facts available. Therefore, for these final remand results, we have not made any changes from our draft remand results.

Comment 2: Choice of Margin Used as Facts Available

The Department has reconsidered the appropriate margin to be used as adverse facts available in this remand determination, and has decided to use data taken directly from information Ta Chen previously submitted in this review for purposes of calculating an adverse facts available margin. Ta Chen argues that the Department has no basis to make an adverse inference. However, according to Ta Chen, when it has made such an inference, the Department has used a weighted-average dumping margin as adverse facts available, citing Notice of Final Determination of Sales at Less Than Fair Value; Static Random Access Memory from Taiwan, 63 FR 8909, 8920 (February 23, 1998). Ta Chen argues that the Department should use the weighted-average dumping margin for Ta Chen's sales to its non-Sun customers. Ta Chen accuses the Department of unlawfully selecting the applied margin merely "because it wants a higher margin," citing Ferro Union v. U.S., 44 F. Supp. 2d 1310, 1335 (C.I.T. 1999); Hot-Rolled from Japan, 64 FR at 24354. See Ta Chen's Comments, at 14 (February 8, 2000). Ta Chen also points to the Department's response at oral argument regarding Ta Chen's negotiations with Sun, and argues that the Department is not focusing on the POR, claiming that this further supports Ta Chen's argument that the Department should use the average of margins found on sales other than those to Sun.

Ta Chen argues that roughly 90% of its sales were to customers other than Sun. Ta Chen states that the weighted-average dumping margin on those sales was negative and that, calculated by quantity, the Department found dumping in .71 % (by quantity) of those sales. Furthermore, Ta Chen argues that, by quantity, only .04% of those sales were found by the Department to have a margin of 30.95% (which the Department used as the facts available margin in the draft remand results). Ta Chen argues that since the sales in which the Department found dumping were de minimis in number, such sales were aberrant and not representative of Ta Chen's sales. Ta Chen argues that its conclusion is supported by the 3.27% dumping margin in the original investigation, and the de minimis dumping margins found in the reviews following the review period at issue in this remand.

Ta Chen argues that the Department's choice of margins is contrary to Departmental practice to exclude aberrant dumping margins, citing Ta Chen's Brief in support of its Rule 56.2 Motion for Judgement on the Agency Record, at 16, 28-30, CIT Case No. 97-08-01344 (September 28, 1998); Ta Chen's Reply Brief, at 6-9, CIT Case No. 97-08-01344 (January 6, 1999); Notice of Final Determination of Sales at Less Than Fair Value; Extruded Rubber Thread from Malaysia, 57 FR 38465 (August 25, 1992); Final Determination of Sales at Less Than Fair Value; Stainless Steel Sheet and Strip Coils from Germany, 64 FR 30710, 30714 (June 8, 1999) ("SSSS from Germany"). Ta Chen argues that the Department has no support for its decision to choose the sale with the highest calculated margin for use as facts available. Ta Chen faults the Department for not applying the SSSS from Germany methodology in this remand. Ta Chen argues that, applying the SSSS from Germany methodology, Ta Chen's highest non-aberrant margin is 0%.

In support of its argument that the sales for which the Department found dumping margins were aberrant and should be discarded, Ta Chen points to the fact that the sales involved in the 30.95% dumping margin were all from one invoice, and accounted for .51% of Ta Chen's U.S. sales, and 2.4% of Ta Chen's U.S. sales by quantity. In fact, Ta Chen argues that all the sales involved in dumping margins over 13% were from that one invoice. Ta Chen goes on to argue that the net price on the sales involved in the 30.95% dumping margin was 83% less than the 1995 average for the product sold. In looking at all sales with dumping margins, the average price in those sales was 63% less than the 1995 average for the product sold. Ta Chen conducted "t-tests" on these differences in price and concludes that the differences in price, between sales where dumping was found versus sales where dumping was not found, are statistically significant. Ta Chen also created scatter diagrams on a product-to-product basis to chart this statistical difference.

Finally, Ta Chen argues that the Department failed to define the standard it used in determining that the pricing on the dumping margin used is "similar" to Ta Chen's other U.S. pricing, in applying it as facts available. Without defining its standards for "similar", Ta Chen argues that the Department's Draft Results are not transparent and are, therefore, unlawful. Ta Chen also argues that the percentage of sales with a 30.95% dumping margin are too small to be considered, citing Final Results of Antidumping Administrative Review and Determination Not to Revoke Order in Part; Pure Magnesium from Canada, 64 FR 50489, 50492 (September 17, 1999) ("Magnesium from Canada"); accord, Final Results of Antidumping Duty Administrative Review and Determination to Revoke in Part; Certain Corrosion-Resistant Carbon Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate from Canada, 64 FR 2173, 2175 (January 13, 1999) ("COR and CTL Plate from Canada"). Ta Chen also argues that the Department failed to properly consider the record in its entirety, specifically, the "overwhelming" evidence that the 30.95% margin, used by the Department, is not representative of Ta Chen's U.S. sales practice. Ta Chen also argues that a reasonable mind would not conclude that Ta Chen would practice dumping where 99.29% of its sales had no dumping, and where U.S. prices were above home market prices.

Department's Position: We disagree with Ta Chen. The Department has sufficient basis for recalculating Ta Chen's dumping margin using the highest weighted-average dumping margin from Ta Chen's other sales as adverse facts available. The Department first addresses Ta Chen's accusation that the Department chose Ta Chen's highest weighted-average dumping margin as facts available "simply because it wants a higher margin." The Department notes that prior to this recalculation, Ta Chen's margin was 6.06%. See Certain Welded Stainless Steel Pipe from Taiwan; Final Results of Administrative Review, 62 FR 37543, 37556 (July 14, 1997). After the Department recalculated the margin using Ta Chen's highest weighted-average dumping margin from its other sales, the margin dropped to 2.6%. See Draft Results of Redetermination (January 18, 2000). In addition, if the Department were truly interested in using the highest margin as adverse facts available, it could have continued to use 31.9% as it did in the Final Results.

Ta Chen's argument that the dumping margins in the investigation and the reviews subsequent to the review period at issue in this remand suggest that the sales were aberrant, misses the point. Whether or not a respondent engaged in dumping for another review period cannot be read as determining how the respondent behaved in the POR at issue.

Ta Chen is correct that the Department rejects margins considered to be aberrant. However, the Department disagrees with Ta Chen's classification of its dumping margins as "aberrant." First, the Department does not conduct statistical "t test" calculations to determine whether or not sales are aberrant. More importantly, however, it is not Departmental practice to exclude sales from U.S. market calculations. Exclusions are made only in calculations for the foreign market; the Department uses all U.S. sales in conducting calculations on the U.S. market. In its draft remand, the Department explained that "{i}n choosing the sale with the highest calculated margin, we compared this sale to other Ta Chen sales by price, product, and quantity and found this sale to be similar to Ta Chen's other sales." Thus, the Department examined more than price when determining whether the sale was sufficiently similar to Ta Chen's other sales to be considered "non-aberrant".(2) Moreover, whether or not price is similar to prices of other sales is less important than other circumstances indicating whether sales are aberrant.

Ta Chen argues that the Department's standards in this regard are not sufficiently clear. However, it is clear what variables the Department scrutinized in comparing sales. 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. The Department therefore concluded that the sales for which the 30.95% dumping margin was calculated was properly typical of Ta Chen's range of sales, and was proper for using as adverse facts available. Additionally, the Department chose the 30.95% rate because it was calculated from Ta Chen's own sales, and did not fall on the extreme, as evidenced by Ta Chen's own charts. See Ta Chen's comments, at Table II (indicating a slow rise in margins culminating at the 30.95% rate).

As for Ta Chen's argument that there are too few sales with a 30.95% dumping margin for proper consideration, the cases cited by Ta Chen (Magnesium from Canada, and COR and CTL Plate from Canada) do not support its argument. The discussion in those cases regarding whether dumping margins were reflective of a company's normal practice were made in the context of determining whether the sales had been made in commercial quantities in the context of a revocation decision. The use of these sales did not involve adverse facts available issues. Furthermore, the Department has 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. The SAA provides that, where a party has not cooperated in a proceeding:

Commerce ... may employ adverse inferences about the missing information to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully. In employing adverse inferences, one factor the agencies will consider is the extent to which a party may benefit from its own lack of cooperation.

See SAA at 870; see also Notice of Preliminary Determination of Sales at Less Than Fair Value; Structural Steel Beams from Japan, 65 FR 6992, 6994 (February 11, 2000). Here, the Department has determined that Ta Chen did not cooperate to the best of its ability and that an adverse inference is therefore appropriate to induce Ta Chen's cooperation in further reviews. The Department believes that the use of Ta Chen's highest weighted-average dumping margin is sufficiently adverse to achieve this goal. Accordingly, the Department is maintaining its use of Ta Chen's highest weighted-average dumping margin as adverse facts available.

FINAL RESULTS OF REDETERMINATION

The Department has recalculated the dumping margin for Ta Chen based upon the changes set forth, supra. Accordingly, for these final results, the weighted-average margin for Ta Chen for the period December 1, 1994 through November 30, 1995 is 2.60 percent.

Robert S. LaRussa
Assistant Secretary
for Import Administration

Date


1. Again, in the Final Results of this review [ ] was referred to as Company A. However, the identity of [ ] was never placed on the public record and will continue to be treated as proprietary information.

2. The Department could not use the exact methodology used in SSSS from Germany because to do so would result in a 0% dumping margin, as Ta Chen admits. Obviously such a margin does not induce a respondents' cooperation, which is the purpose of the adverse facts available provision.