Reiner Brach GmbH & Co. KG v. United States

Slip-Op. 02-50

UNITED STATES COURT OF INTERNATIONAL TRADE

_____________________________________
:
REINER BRACH GmbH & CO. KG :
and :
NOVOSTEEL SA, :
:
Plaintiffs, :
: Court No. 01-00055
: BEFORE: CARMAN, CHIEF JUDGE
v. :
:
UNITED STATES, :
:
Defendant, :
and :
:
BETHLEHEM STEEL :
CORPORATION and UNITED STATES :
STEEL CORPORATION, :
:
Defendant-Intervenors :
_____________________________________

[Plaintiff’s Rule 56.2 motion for judgment upon the agency record is denied.]

Edmund Maciorowski, P.C. (Edmund Maciorowski, Pamela L. St. Peter), Bloomfield
Hills, Michigan, for Plaintiffs.

Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director,
Commercial Litigation Branch, Civil Division, United States Department of Justice; Lucius B.
Lau, Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice; Glenn R. Butterton, Attorney, Office of the Chief Counsel for Import
Administration, United States Department of Commerce, Of Counsel, for Defendant.

Dewey Ballantine LLP (Michael H. Stein, Bradford L. Ward, Navin Joneja), Washington,
D.C., for Defendant-Intervenors.

Date: June 4, 2002
Court No. 01-00055 Page 1

OPINION

CARMAN , CHIEF JUDGE: Plaintiffs Reiner Brach GmbH & Co. KG (“Reiner Brach”) and

Novosteel SA (“Novosteel”) move for judgment upon the agency record, challenging the final

results of two administrative reviews of cut-to-length carbon steel plates from Germany by the

United States Department of Commerce (“Commerce”). See Certain Cut-to-Length Carbon

Steel Plate From Germany: Final Results of Antidumping Duty Administrative Reviews, 66 Fed.

Reg. 3545 (Jan. 16, 2001) (Final Results); see also Issues and Decision Memorandum for the

Administrative Reviews of Certain Cut-to-Length Carbon Steel Plate from Germany: August 1,

1997 through July 31, 1998, and August 1, 1998 through July 31, 1999 (Jan. 16, 2001), Def. Pub.

App. Ex. 2 (Decision Memo). In the Final Results, Commerce calculated a 36 percent dumping

margin based on total adverse facts available. See Final Results, 66 Fed. Reg. at 3546; see also

Preliminary Results, 65 Fed. Reg. at 54,207. Plaintiffs assert Commerce’s decision to apply

total facts otherwise available with adverse inferences and its application of a 36 percent

dumping margin are not supported by substantial evidence and are not otherwise in accordance

with law. Defendant United States and Defendant-Intervenors Bethlehem Steel Corporation and

United States Steel Corporation (“Defendant-Intervenors”) contend the application of total facts

otherwise available with adverse inferences is reasonable. Plaintiffs’ challenge to Commerce’s

determination is denied. This Court has jurisdiction to hear this case pursuant to 28 U.S.C.

1581(c) (2000).
Court No. 01-00055 Page 2

BACKGROUND

Reiner Brach is a German producer of cut-to-length steel plate. The merchandise at issue

was purchased from Reiner Brach by the Swiss company Novosteel. See Final Results, 66 Fed.

Reg. at 3545-46. On August 11, 1998, Commerce published a notice of opportunity to request

administrative review of Antidumping Duty Orders and Amendments to Final Determinations of

Sales at Less Than Fair Value: Certain Hot-Rolled Carbon Steel Flat Products, Certain Cold-

Rolled Carbon Steel Flat Products, Certain Corrosion-resistant Carbon Steel Flat Products and

Certain Cut-to-Length Carbon Steel Plate From Germany, 58 Fed. Reg. 44170 (Aug. 19, 1993)

for the period August 1, 1997 through July 31, 1998. See Antidumping or Countervailing Duty

Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 63

Fed. Reg. 42,821 (Aug. 11, 1998). A similar notice was published on August 11, 1999 as to that

order for the period of August 1, 1998 through July 31, 1999. See Antidumping or

Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request

Administrative Review, 64 Fed. Reg. 43,649 (Aug. 11, 1999). Novosteel requested

administrative reviews and a scope inquiry for both periods of review. See Final Results, 66 Fed.

Reg. at 3545. After Commerce received Novosteel’s responses to its questionnaires, Defendant-

Intervenors requested termination of the administrative reviews, arguing Reiner Brach, rather

than Novosteel, was the appropriate respondent. See id. In opposition to termination of the

reviews, on February 2, 2000 Reiner Brach submitted a letter to Commerce agreeing to become a

respondent for the reviews. See id. Commerce found that “Reiner Brach not only was the

producer of the subject merchandise, but also had knowledge that the products were destined for

the United States, and that, thus, the sale between Reiner Brach and Novosteel was the
Court No. 01-00055 Page 3
appropriate link in the sales chain” upon which to focus. Id. at 3545-46.

Commerce issued a questionnaire to Reiner Brach on February 15, 2000 directing it to:

Report all sales of the foreign like product, whether or not you consider particular
merchandise to be that which is most appropriately compared to your sales of the subject
merchandise. The Department will then select the appropriate comparison sales from
your sales listing.

U.S. Department of Commerce, Import Administration, Administrative Review Questionnaire

(Feb. 15, 2000), at B-1, Pub. Docs. 33 and 34, Def. Pub. App. Ex. 1 at B-1 (Feb. 15

Administrative Questionnaire). Additionally, Section D of the questionnaire asked for cost of

production (COP) and constructed value (CV) information. It stated, “The COP and CV figures

that you report in response to this section of the questionnaire should be calculated based on the

actual costs incurred by your company during the period of review (“POR”), as recorded under

its normal accounting system.” Id. at D-1.

After Reiner Brach submitted its responses, Commerce sent supplemental questionnaires

requesting 1) clarification of discrepancies between the total quantity of home market sales

reported in Reiner Brach’s responses and the quantity indicated by the sales data in its

spreadsheets, and 2) clarification as to why various reported costs were the same for both periods

of review. See U.S. Department of Commerce Supplemental Questionnaire (May 25, 2000), at 1,

Pub. Doc 51, Def. Pub. App. Ex. 3 at 3; U.S. Department of Commerce Supplemental

Questionnaire (July 11, 2000), at 5-8, Pub. Doc. 68, Def. Pub. App. Ex. 5 at 7-10. As to the first

question, Reiner Brach responded that while the total quantity of home market sales were “based

on a review of their aggregate sales data,” the figures derived from the data spreadsheets were

“based on individual invoices for the period of review.” Reiner Brach Supplemental

Questionnaire Response (June 15, 2000), at 2, Pub. Doc. 60, Def. Pub. App. Ex. 4 at 4. With
Court No. 01-00055 Page 4
regard to the second question, Reiner Brach explained the costs “do not markedly change from

year to year. The costs given are averages which reflect any slight increase or decrease in costs

over the periods of review.” Reiner Brach Supplemental Questionnaire Response (July 24,

2000), at 22-29, Pub. Doc. 73, Def. Pub. App. Ex. 6 at 5-12.

Commerce conducted verification of Reiner Brach’s responses from August 2 through

August 5, 2000. During verification Reiner Brach sought to submit previously unreported home

market sales data of identical merchandise, but Commerce refused to accept the information

because it constituted substantial new information and therefore was untimely. See Letter from

the U.S. Department of Commerce to Edmund Maciorowski, PC (on behalf of Reiner Brach)

(Aug. 9, 2000), at 1, Pub. Doc. 92, Def. Pub. App. Ex. 7 at 1. Commerce also discovered during

verification that although the cost of production figures submitted for both periods of review

were based on the same cost data, Reiner Brach could distinguish costs on a month-by-month

basis yet had failed to do so despite the request for “actual” costs. (Def. Br. at 9, citing

Verification Report (Aug. 21, 2000) at 11, Conf. Doc. 26.)

Commerce issued its preliminary determination on September 7, 2000. See Certain Cut-

to-Length Carbon Steel Plate From Germany: Preliminary Results of Antidumping Duty

Administrative Reviews, 65 Fed. Reg. 54,205 (Sept. 7, 2000) (Preliminary Results).

Significantly, Commerce used the total facts otherwise available pursuant to section 776(a)(2)(A)

of the Tariff Act of 1930 (“the Act”). See Preliminary Results, 65 Fed. Reg. at 54,207. It noted

Reiner Brach’s provision of information only on a minimal portion of its home market sales of

the foreign like product because Reiner Brach had “interpreted [Commerce’s] questionnaire to

mean that Reiner Brach only had to report identical sales in the home market that matched its
Court No. 01-00055 Page 5
U.S. sales.” Id. Additionally, Commerce indicated that Reiner Brach had failed to provide

accurate cost of production information. See id. Furthermore, because Reiner Brach had in its

records the data that Commerce sought and was capable of providing it but failed to do so,

Commerce used adverse inferences when choosing from among the facts otherwise available

pursuant to section 776(b) of the Act. See id. Commerce decided the “all others rate” of 36

percent was appropriate because it was the highest rate applied to any company in any segment of

the proceeding and was calculated during the less-than-fair-value investigation. See id. After

receiving comments from the parties regarding the preliminary results, Commerce issued its final

results on January 16, 2001, which contained no changes in its margin calculations. Final

Results, 66 Fed. Reg. at 3545.

PARTIES’ CONTENTIONS

I. Plaintiffs’ Contentions

Plaintiffs contend that Commerce’s decision to apply total facts otherwise available with

adverse inferences is not supported by substantial evidence on the record and is not otherwise in

accordance with law. Plaintiffs present seven arguments to support their contention. First,

Plaintiffs argue that in submitting information to Commerce, they complied with the definition of

the term “foreign like product” contained in 19 U.S.C. § 1677(16) and their “fair reading” of

Commerce’s questionnaires. (Pl. Br. at 18.) Based on Plaintiffs’ understanding of the statute

and questionnaire definitions, Plaintiffs believed they were required to submit home market sales

of identical merchandise only. See id. at 10, 18.

Second, Plaintiffs posit Commerce did not properly review Reiner Brach’s questionnaire
Court No. 01-00055 Page 6
responses and any such review would have revealed the alleged omissions. See id. at 19-22.

Third, Plaintiffs submit that statutory authority and case law require Commerce to give

the respondent involved in the administrative review a reasonable opportunity to provide the

information requested and to issue a deficiency letter when a response is not satisfactory. See id.

at 23. Plaintiffs contend Commerce did not issue deficiency letters to allow for correction of

Plaintiffs’ responses or submission of omitted information. See id. Plaintiffs therefore allege

Commerce’s failure to issue deficiency letters was in error.

Fourth, Plaintiffs challenge Commerce’s refusal to accept the information that Reiner

Brach submitted during verification regarding home market sales of identical merchandise. See

id. at 24. Plaintiffs observe that Commerce “routinely” allows parties to submit information

during verification and its failure to do so in this case was contrary to law. See id. at 25.

Fifth, Plaintiffs contend Commerce improperly refused to extend the date for its final

determination and to issue supplemental questionnaires to allow submission of information

during verification. See id. at 25. Commerce noted in its Decision Memo that it did not issue

supplemental questionnaires during verification because “such use of the Department’s discretion

must be reserved for truly unique circumstances, not for cases in which a party’s lack of

cooperation resulted in a severely deficient record.” Id. at 27, quoting Decision Memo, Def. Pub.

App. Ex. 2 at 5. Plaintiffs point to their various submissions of requested information to

Commerce to demonstrate their cooperation, and they note that Commerce referred to this case as

being “extraordinarily complicated” to show the case is unique. (Pl. Br. at 27-28.)

Sixth, Plaintiffs argue Commerce incorrectly chose to apply total facts otherwise

available with adverse inferences. They assert adverse inferences are used only when there is a
Court No. 01-00055 Page 7
refusal to provide requested information. Furthermore, Commerce had sufficient information

with which to calculate normal value, and therefore total facts otherwise available should not

have been used. See id. at 29-33.

Finally, the Plaintiffs challenge Commerce’s application of the 36 percent dumping

margin. They assert that the rate is unreasonable, unreliable, and irrelevant to the totality of the

circumstances. See id. at 40. It is their claim that the 36 percent margin “bears no rational

relationship to the current level of dumping in the industry.” Id. at 42.

II. Defendant’s Contentions

Defendant and Defendant-Intervenors (collectively “Defendants”) assert Commerce was

justified in relying upon total facts otherwise available with adverse inferences because Reiner

Brach failed to provide home sales data for similar merchandise and improperly reported its cost

of production data. Defendants maintain Reiner Brach possessed the requisite information and

could have provided it to Commerce. Reiner Brach’s failure to do so demonstrates its

unwillingness to cooperate to the best of its ability. (Def. Br. at 17-19.)

Second, in response to Plaintiffs’ claim that Reiner Brach properly interpreted the

questionnaires to require only information regarding identical merchandise, Defendants point out

that the questionnaires specifically asked for all sales of the foreign like product. See id. at 19.

Third, Defendants call attention to the fact that Commerce forwarded supplemental

questionnaires to Reiner Brach inquiring about the discrepancies between its questionnaire

responses and its sales data for home market sales as well as the cost of production figures. See

id. at 21-22. Defendants argue Commerce was not able to determine that the information

submitted by Reiner Brach was inaccurate until verification. See id. Once Commerce
Court No. 01-00055 Page 8
determined during verification that Reiner Brach’s submissions were not accurate, Defendants

claim Commerce properly used its discretion in deciding not to issue further supplemental

questionnaires because there would not be sufficient time to verify the information. See id. at 22-

23, 26-28. Defendants maintain it is the obligation of the plaintiffs, not Commerce, to ensure the

accuracy of the record. See id. at 31, quoting Decision Memo, Def. Pub. App. Ex. 2 at 4-5.

Fourth, Defendants rebut Plaintiffs’ assertion that Commerce has developed a routine

practice of accepting information during verification. Defendants distinguish the cases cited by

Plaintiffs and call attention to Commerce’s warning to Reiner Brach that verification is not an

opportunity to submit new factual information. See id. at 23-25.

In response to Plaintiffs’ complaint regarding Commerce’s failure to extend the date for

the final determination, Defendants assert Commerce would not have had time to issue a

supplemental questionnaire and verify the submitted information. See id. at 27, quoting Decision

Memo, Def. Pub. App. Ex. 2 at 5. Additionally, Defendants point out that extension of the time

to issue a final determination is reserved for unique circumstances rather than for cases where

there is a lack of cooperation. See id.

Sixth, Defendants state Plaintiffs’ submission of “voluminous” data is irrelevant because

Commerce could not use the sales or cost data to calculate dumping margins. See id. at 28.

Defendants note that Reiner Brach only submitted a “minimal portion of its home market sales of

the foreign like product,”(id. at 29, quoting Decision Memo, Def. Pub. App. Ex. 2 at 6-7), and

maintain that “it is the quality of the information submitted, not the quantity that matters.” (Def.

Br. at 30.)

Finally, Defendants reason that Commerce properly applied the 36 percent dumping
Court No. 01-00055 Page 9
margin because the rate “ensures that the respondent does not obtain a more favorable result

because it failed to cooperate in these administrative reviews.” Id. at 33, quoting Decision

Memo, Def. Pub. App. Ex.2 at 8. The rate applied in this case was the “all others” rate that

Commerce asserts was appropriate to use rather than the lower rates calculated for another

German producer of the subject merchandise in recent years because the other German producer

had cooperated with Commerce’s requests for information. (Def. Br. at 35-36.) Thus Commerce

argues the 36 percent rate is reliable, reasonable, and relevant as required by case law. See id. at

34-36.

STANDARD OF REVIEW

This Court will sustain a final determination of Commerce unless it is found to be

“unsupported by substantial evidence on the record, or otherwise not in accordance with law.”

19 U.S.C. § 1516a(b)(1)(B)(i). Substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340

U.S. 474, 477 (1951) (internal quotations omitted). Commerce’s decision will be upheld “if it is

reasonable and supported by the record as a whole, including whatever fairly detracts from the

substantiality of the evidence.” Novosteel SA v. United States, 128 F. Supp. 2d 720, 725 (Ct.

Int’l Trade 2001) (internal quote omitted). Commerce’s decision is in accordance with law when

“the agency’s actions were reasonable under the terms of the relevant statute.” Shakesproof

Assembly Components Div. of Ill. Tool Works, Inc. v. United States, 102 F. Supp. 2d 486, 489

(Ct. Int’l Trade 2000). In addition, “[s]ubstantial deference is granted to the agency in both its

interpretation of its statutory mandate and the methods it employs in administering the
Court No. 01-00055 Page 10
antidumping law.” North Star Steel Ohio, a Div. of N. Star Steel Co. v. United States, 824 F.

Supp. 1074, 1077 (Ct. Int’l Trade 1993) (internal quotations omitted).

ANALYSIS

I. The Department of Commerce’s application of total facts otherwise available is
supported by substantial evidence on the record and is otherwise in accordance with law.

Congress has given Commerce statutory authority to use facts otherwise available in

reaching administrative decisions 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 administering authority
or the Commission under this subtitle,

(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 under this subtitle, or

(D) provides such information but the information cannot be verified. . . .

19 U.S.C. § 1677e(a) (2000).

Commerce’s ability to use facts otherwise available pursuant to 19 U.S.C. §

1677e(a)(2)(B) is subject to its compliance with § 1677m(c)(1), (d) and (e). Commerce is

required to corroborate any secondary information it will rely upon rather than relying upon

information obtained during the review. See § 1677e(c). As summarized in

Mannesmannrohren-Werke AG v. United States, 77 F. Supp. 2d 1302, 1313 (Ct. Int’l Trade

1999), “before Commerce may use facts available, 19 U.S.C. § 1677m(d) . . . requires that
Court No. 01-00055 Page 11
Commerce give a party an opportunity to remedy or explain deficiencies in its submission. If the

remedy or explanation provided by the party is found to be‘not satisfactory’ or untimely, the

information may be disregarded in favor of facts available, subject to the five part test in

Subsection (e).” In the present case, Commerce applied facts otherwise available based on its

determination that Reiner Brach withheld sales information requested and failed to provide cost

information in the requested form. See Decision Memo, Def. Pub. App. Ex. 2 at 6. Based on the

reasons that follow, the Court sustains Commerce’s decision.

A. Submission of home market sales data

The Court finds Commerce sufficiently notified Reiner Brach that it was to submit home

market sales data for both identical and similar merchandise. Commerce’s use of facts otherwise

available is justified because Reiner Brach failed to provide information regarding sales of

similar merchandise and omitted certain sales of identical merchandise.

Commerce indicated to Reiner Brach in its initial questionnaire dated February 15, 2000

that all sales of the foreign like product were to be reported. See Feb. 15 Administrative

Questionnaire, at B-1, Pub. Docs. 33 and 34, Def. Pub. App. Ex. 1 at B-1. In Appendix I of the

February 15, 2000 questionnaire, Commerce defined “foreign like product” as “merchandise that

is sold in the foreign market and that is identical or similar to the subject merchandise.” Id. at I-

7, Def. Pub. App. Ex.1 at I-7. In light of Commerce’s request for “all” home market sales data

for “identical or similar merchandise,” it is apparent Commerce had requested data for sales of

all merchandise that fell under either the “identical” category or the “similar” category, not just

one category. With regard to the term “identical merchandise,” Commerce provided, “Identical
Court No. 01-00055 Page 12
merchandise is the preferred category of foreign like product for purposes of the comparison

with subject merchandise. The identical merchandise is merchandise that is produced by the

same manufacturer in the same country as the subject merchandise, and which the Department

determines is identical or virtually identical in all physical characteristics with the subject

merchandise, as imported into the United States.” Id. at I-8, Def. Pub. App. Ex. 1 at I-8

(emphasis added). In addition, Commerce made clear it would decide, based upon the

information submitted, whether there were any sales of identical foreign like product and what

constituted “similar merchandise.” As to “similar merchandise,” Commerce explained: “In

deciding which sales of the foreign like product to compare to sales of the subject merchandise,

the Department first seeks to compare sales of identical merchandise. If there are no sales of the

identical foreign like product, the Department will compare sales of the foreign like product

similar to the subject merchandise.” Id. at I-11, Def. Pub. App. Ex. 1 at I-11.

In its initial response, Reiner Brach provided only information regarding what it

considered to be identical merchandise sold in the home market. Reiner Brach relies upon its

interpretation of the questionnaire language and the statute defining “foreign like product” to

maintain that it reasonably believed it was obligated to report only information regarding sales of

identical merchandise.1 Despite Plaintiffs’ argument, it is clear that Reiner Brach was obligated

1
“Foreign like product” is defined in 19 U.S.C. § 1677(16) as:
merchandise in the first of the following categories in respect of which a determination
for purposes of part II of this subtitle can be satisfactorily made:
(A) The subject merchandise and other merchandise which is identical in physical
characteristics with, and was produced in the same country by the same person as,
that merchandise.
(B) Merchandise -
(i) produced in the same country and by the same person as the subject
merchandise,
Court No. 01-00055 Page 13
to provide information regarding both identical merchandise and similar merchandise from

Commerce’s 1) request for “all” sales of the foreign like product, 2) definition of foreign like

product as “identical or similar merchandise,” and 3) indication that Commerce will determine

itself which sales are appropriate for comparison purposes from those reported, as seen in the

definition of identical merchandise as that merchandise which Commerce determines is identical.

Commerce did not give Reiner Brach discretion to determine which were the proper sales for

comparison purposes. Thus Reiner Brach had the obligation to submit information regarding

home market sales of both identical merchandise and similar merchandise. See Allegheny

Ludlum Corp. v. United States, Consol. Ct. No. 99-06-00369, 2000 Ct. Int’l Trade LEXIS 176, at

*49 (Ct. Int’l Trade Dec. 28, 2000) (“In response to this inquiry into home market sales, a

defined term that is one of the central issues in any dumping investigation, [the respondent] had a

statutory obligation to prepare an accurate and complete record in response to questions plainly

asked by Commerce.”).

Reiner Brach further argues that Commerce failed to inform it that its response to the

initial questionnaire was deficient as required by statute. The facts available statute states

Commerce’s use of facts otherwise available is subject to 19 U.S.C. § 1677m(d), which reads,

(ii) like that merchandise in component material or materials and in the
purposes for which used, and
(iii) approximately equal in commercial value to that merchandise.
(C) Merchandise -
(i) produced in the same country and by the same person and of the same
general class or kind as the subject merchandise,
(ii) like that merchandise in the purposes for which used, and
(iii) which the administrative authority determines may reasonably be
compared with that merchandise.
19 U.S.C. § 1677(16).
Court No. 01-00055 Page 14
“[i]f the administering authority . . . determines that a response to a request for information under

this subtitle does not comply with the request, the administering authority . . . 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 investigations or reviews under this subtitle.”

The Court finds Commerce complied with the requirements of § 1677m(d). First, in the

present case, the initial questionnaire was clear as to the information requested. Commerce

asked for “all” home market sales of the foreign like product and made clear that “foreign like

product” consisted of “identical or similar merchandise.” Second, Commerce raised the

discrepancies it noticed in the supplemental questionnaire and gave Reiner Brach an opportunity

to explain the discrepancies. In its May 25, 2000 supplemental questionnaire, Commerce stated,

“According to your Section A response, total quantity for Home Market sales sold is [***]

kilograms and the total value is $ [***]. However, your sales data indicates that total quantity for

Home Market sales is [***] MT or ([***] kg) and total sales value is $ [***]. Please explain

these discrepancies.” (Def. Pub. App. Ex. 3 at 3). Third, the response given by Reiner Brach to

the supplemental questionnaire was so vague that Commerce did not have notice or reason to

believe a deficiency existed. Commerce could not have known that there was a deficiency

remaining in that Reiner Brach had not submitted all of its home market sales data as requested

by Commerce. See Tung Mung Dev. Co., Ltd., 2001 Ct. Intl. Trade LEXIS 94, at *97. Reiner

Brach provided the following answer to the supplemental questionnaire on June 15, 2000, “The

quantity and value figures given in Reiner Brach’s Section A response were based on a review of

their aggregate sales data. The quantity and value figures derived from the data spreadsheets are
Court No. 01-00055 Page 15
based on individual invoices for the period of review.” (Def. App. Ex. 4 at 4).

Commerce maintains, based on the responses provided by Reiner Brach in the

questionnaire and supplemental questionnaire, it could not have determined that the information

provided was erroneous until verification. (Def. Br. at 21, citing Decision Memo, Def. Pub. App.

Ex. 2 at 4). Reiner Brach, on the other hand, asserts the missing information was evident and if

Commerce sought both identical and similar merchandise data, it had the obligation to inform

Reiner Brach of any deficiency. Reiner Brach cites Bowe-Passat v. United States, 17 CIT 335

(1993) and Ta Chen Stainless Steel Pipe, Ltd. v. United States, 23 CIT 804 (1999) to support its

argument, yet both cases are distinguishable. In Ta Chen, the information allegedly missing was

never specifically requested in the original questionnaire or in the supplemental questionnaires.

See Ta Chen, 23 CIT at 818-19. The reasoning of the court in Ta Chen is grounded in the fact

that Commerce did not ask for the specific information in the initial questionnaire and then failed

to ask for it in the supplemental questionnaires, thereby clearly violating 19 U.S.C. § 1677m. See

id. at 818-20. In the present case, however, Commerce requested the specific information it

sought in the initial and supplemental questionnaires. See Tung Mung Dev. Co., Ltd. v. United

States, Consol. Ct. No. 99-07-00457, 2001 Ct. Intl. Trade LEXIS 94, at *95-96 (Ct. Int’l Trade

July 3, 2001) (distinguishing Ta Chen based on the fact that in Ta Chen Commerce had not

specifically asked for the information it later claimed was missing).

In Bowe-Passat, the court stated, “In the case at bar, the ITA would have this Court

endorse an investigation where the ITA sent out a general questionnaire and a brief deficiency

letter, then effectively retreated into its bureaucratic shell, poised to penalize Bowe for

deficiencies not specified in the letter that the ITA would only disclose after it was too late, i.e.,
Court No. 01-00055 Page 16
after the preliminary determination. This predatory ‘gotcha’ policy does not promote cooperation

or accuracy or reasonable disclosure by cooperating parties intended to result in realistic dumping

determinations.” Id. at 343. First, Bowe-Passat was decided prior to the enactment of the

Uruguay Round Agreements Act in 1994 which governs the present case. Second, it is apparent

in Bowe-Passat that Commerce was aware of the deficiency at the time it issued the deficiency

letter but failed to adequately address the deficiency and to inform Bowe that further information

was required. In the present case, however, Commerce states that it was unaware of the

deficiency and, based on Reiner Brach’s supplemental questionnaire response, could not have

known of it until verification. As discussed, the initial questionnaire was clear as to the

information requested. In the supplemental questionnaire, Commerce asked about the

discrepancies it did notice and gave Reiner Brach an opportunity to explain the discrepancies.

Third, in Bowe-Passat, the court found that Bowe submitted information in response to the

deficiency letter in a timely manner and was prepared to submit the information Commerce later

claimed was missing if Commerce had informed Bowe of the deficiency. In the present case, the

response given by Reiner Brach to the supplemental questionnaire was so vague that Commerce

did not have notice or reason to believe a deficiency existed. It is the interested party’s

obligation to create an accurate record and provide Commerce with the information requested to

ensure an accurate dumping margin. See Sanyo Elec. Co., Ltd. v. United States, 9 F. Supp. 2d

688, 697 (Ct. Int’l Trade 1998); RHP Bearings v. United States, 875 F. Supp. 854, 857 (Ct. Int’l

Trade 1995).

The Court finds Reiner Brach’s failure to provide all information regarding home market

sales of identical merchandise justifies Commerce’s decision to apply facts otherwise available.
Court No. 01-00055 Page 17
See 19 U.S.C. § 1677e(a)(2)(A) and (B); see also Fabrique de Fer de Charleroi S.A. v. United

States, 155 F. Supp. 2d 801, 807-08 (Ct. Int’l Trade 2001). During verification, in letters dated

August 2, 7, and 8, 2000, Reiner Brach sought to submit information regarding home market

sales of identical merchandise which it had previously “inadvertently omitted.” See Letter from

Edmund Maciorowski, PC (on behalf of Reiner Brach) to the U.S. Department of Commerce

(Aug. 2, 2000), at 1, Pl. Pub. App. 6 Ex. 19 at 1; Letter from Edmund Maciorowski, PC (on

behalf of Reiner Brach) to the U.S. Department of Commerce (Aug. 8, 2000), Pl. Pub. App. 6

Ex. 21; Letter from the U.S. Department of Commerce to Edmund Maciorowski, PC (on behalf

of Reiner Brach) (Aug. 9, 2000), at 1, Pub. Doc. 92, Def. Pub. App. Ex. 7 at 1. Commerce

rejected the submission as “new factual information” and therefore “untimely” submitted. Letter

from the U.S. Department of Commerce to Edmund Maciorowski, PC (on behalf of Reiner

Brach) (Aug. 9, 2000), at 1, Pub. Doc. 92, Def. Pub. App. Ex. 7 at 1. Plaintiffs claim Commerce

has routinely allowed for submission of information during verification and its refusal to do so in

these circumstances was contrary to law. (Pl. Br. at 25.) The Court holds Commerce’s decision

to reject the information in question is supported by substantial evidence and is otherwise in

accordance with law.

According to Commerce’s regulations, for the final results of an administrative review, a

submission of factual information is due no later than 140 days after the last day of the

anniversary month. See 19 C.F.R. § 351.301(b)(2)(1999). The anniversary month is “the

calendar month in which the anniversary of the date of publication of an order . . . occurs.” §

351.102 (b). This court has previously held that Commerce has broad discretion to establish its

own rules governing administrative procedures, including the establishment and enforcement of
Court No. 01-00055 Page 18
time limits, and it has found Commerce’s policy of setting time limits to be reasonable because

Commerce “clearly cannot complete its work unless it is able at some point to ‘freeze’ the record

and make calculations and findings based on that fixed and certain body of information.”

Coalition for the Pres. of Am. Brake Drum and Rotor Aftermarket Mfrs. v. United States, 44 F.

Supp. 2d 229, 237, 239 (Ct. Int’l Trade 1999) (citations omitted). Commerce had informed

Reiner Brach it would not accept “substantial revisions” during verification; it would accept new

information only when “(1) the need for that information was not evident previously; (2) the

information makes minor corrections to information already on the record; or (3) the information

corroborates, supports, or clarifies information already on the record.” Letter from the U.S.

Department of Commerce to Edmund Maciorowski, PC (on behalf of Reiner Brach) (July 18,

2000), at 2, Pub. Doc. 82, Def. Intervenor Pub.App. Ex. 25 at 2; Letter from the U.S. Department

of Commerce to Edmund Maciorowski, PC (on behalf of Reiner Brach) (July 18, 2000), at 2,

Pub. Doc. 83, Def. Intervenor Pub. App. Ex. 26 at 2. This instruction is consistent with

Commerce’s practice of accepting information during verification where the information relates

to minor adjustments to or corroboration or clarification of information already on the record.

See, e.g., Acciai Speciali Terni S.P.A. v. United States, 142 F. Supp. 2d 969, 1007 (Ct. Int’l Trade

2001); Coalition for Pres. of Am. Brake Drum and Rotor Aftermarket Mfrs., 44 F. Supp. 2d at

235-36. This Court has also upheld Commerce’s discretion to reject substantial new factual

information submitted after the deadline for submission of such information. See, e.g., Bergerac,

N.C. v. United States, 102 F. Supp. 2d 497, 503-04 (Ct. Int’l Trade 2000). Commerce

determined that even if it were to grant Reiner Brach’s request to extend the deadline for the final

determination by 60 days and issue supplemental questionnaires to allow submission of the
Court No. 01-00055 Page 19
omitted information, “[t]he additional sixty days would not provide sufficient time to review and

analyze the data.” Decision Memo, Def. Pub. App. Ex. 2 at 5.

This Court finds Commerce’s rejection of the information submitted during verification

to be reasonable in view of: 1) Commerce’s discretion in administering and enforcing the

applicable statutes and regulations, 2) the clarity of its questionnaires, 3) its inability to discern

the omission of information until verification, and 4) its warning that new information would

generally not be accepted during verification. Additionally, Commerce’s decision to apply fact

otherwise available due to Reiner Brach’s failure to provide the requested information was

appropriate under the circumstances.

C. Submission of cost of production information

This Court finds Commerce acted reasonably in applying facts otherwise available due to

Reiner Brach’s failure to provide the cost of production information in the manner and form

requested. As noted earlier, Reiner Brach was asked to submit cost of production information

calculated based on the actual costs it incurred during each period of review. Commerce issued a

supplemental questionnaire dated July 11, 2000 in which it asked Reiner Brach why various costs

were the same for both periods of review. See U.S. Department of Commerce Supplemental

Questionnaire (July 11, 2000), at 5-8, Pub. Doc. 68, Def. Pub. App. Ex. 5 at 7-10. The answer

given to each of Commerce’s questions was that the various costs figures “do not markedly

change from year to year. The costs given are averages which reflect any slight increase or

decrease in costs over the periods of review.” Reiner Brach Supplemental Questionnaire

Response (July 24, 2000), at 22-29, Pub. Doc. 73, Def. Pub. App. Ex. 6 at 5-12. Commerce

found Reiner Brach had not submitted the cost of production information in the form and manner
Court No. 01-00055 Page 20
requested, making it appropriate for Commerce to apply facts otherwise available pursuant to 19

U.S.C. § 1677e(a)(2)(B).2 In the Decision Memo, Commerce noted Reiner Brach company

officials’ statements that the company had the ability to provide its costs for each period of

review. Additionally, at verification a company official stated that Reiner Brach’s reported input

materials costs changed between the periods of review and “Reiner Brach could distinguish costs

on a month-by-month basis.” Decision Memo, Def. Pub. App. Ex. 2 at 4, quoting Verification

Report (Aug. 21, 2000) at 11, Conf. Doc. 26.

As noted earlier, Commerce’s ability to use facts otherwise available pursuant to 19

U.S.C. § 1677e(a)(2)(B) is subject to its compliance with § 1677m(c)(1), (d) and (e). Plaintiffs

argue Commerce failed to provide a deficiency letter to Reiner Brach in accordance with §

1677m(d) to notify Reiner Brach of deficiencies in its cost of production information.

Commerce issued a supplemental questionnaire specifically requesting information as to why the

cost of production figures were reported as averages. Defendants assert Commerce could not

determine the information submitted was inaccurate and incomplete until verification.

According to Defendants, Commerce believed it did have the proper information in light of

Reiner Brach’s response to the supplemental questionnaire that there were not marked changes in

costs during the periods of review; it was not until verification, when company officials indicated

2
In the Decision Memo, Commerce noted the following explanation given by Reiner
Brach during verification as to why it did not provide the cost data for each period of review: “(1)
cost data for 1999 were available, but the company did not have the personnel available to gather
the data and allocate the costs to each cost center; (2) cost data for 1997 were available, but
Reiner Brach did not review its records because the data was not of interest to Reiner Brach; and
(3) Reiner Brach did not use July 1999 costs because many of its employees were on vacation
and July’s costs would not have been representative of a normal production month.” Decision
Memo, Def. Pub. App. Ex. 2 at 4.
Court No. 01-00055 Page 21
varying costs and Reiner Brach’s ability to report them, that Commerce was aware of the

deficiency. Thus this Court finds Commerce complied with § 1677m(d).

Commerce’s use of facts otherwise available is also subject to § 1677m(e), which

provides that Commerce “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” Commerce 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
[Commerce], and

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

19 U.S.C. § 1677m(e). In the present case, the condition set forth in § 1677m(e)(4) has not been

met. Reiner Brach had actual cost information that could have been reported on a month-by-

month basis but failed to provide such information despite Commerce’s clear indication in its

initial questionnaire that it sought actual costs and its supplemental questionnaire asking why

actual costs were not reported. Such failure demonstrates that Reiner Brach did not act to the

best of its ability in providing the requested information. Commerce is required to calculate

antidumping duty margins as accurately as possible, making it “essential that a respondent

provide Commerce with accurate, credible and verifiable information.” Gourmet Equip.

(Taiwan) Corp. v. United States, No. 99-05-00262, 2000 Ct. Intl. Trade LEXIS 82, at *6-7 (Ct.

Int’l Trade July 6, 2000). In striving to obtain accurate and complete information, Commerce has
Court No. 01-00055 Page 22
discretion to determine if it is imposing an unreasonable burden by requiring that the information

be submitted in a particular form. See Fabrique de Fer de Charleroi S.A., 155 F. Supp. 2d at

808. This Court finds Commerce was not required to use the cost of production information

submitted by Reiner Brach pursuant to § 1677m(e) .

II. The Department of Commerce’s decision to use adverse inferences is supported by
substantial evidence and was otherwise in accordance with law.

Once Commerce has determined that it will apply facts otherwise available under 19

U.S.C. § 1677e(a), it may decide to draw adverse inferences in selecting from among the facts

otherwise available pursuant to § 1677e(b). See Branco Peres Citrus, S.A. v. United States, 173

F. Supp. 2d 1363, 1371 (Ct. Int’l Trade 2001). In order to apply adverse inference though,

Commerce must first find “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. §1677e(b). In the

present case, Commerce determined in the Final Results that Reiner Brach did not cooperate to

the best of its ability in reporting home market sales data and cost of production figures. See

Decision Memo, Def. Pub. App. Ex. 2 at 8.

According to the Statement of Administrative Action (“SAA”), H.R. REP. NO . 103-316

(1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4199, “[w]here a party has not cooperated,

Commerce and the Commission 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 the party may benefit from its own lack of cooperation.” Commerce’s finding

that the respondent failed to cooperate “must be reached by ‘reasoned decisionmaking,’ including
Court No. 01-00055 Page 23
. . . a reasoned explanation supported by a stated connection between the facts found and the

choice made.” Steel Auth. of India, Ltd. v. United States, 149 F. Supp. 2d 921, 929 (Ct. Int’l

Trade 2001) (citations omitted); see also Mannesmannrohren-Werke AG, 77 F. Supp. 2d at 1313-

14 (noting that “Commerce needs to articulate why it concluded that a party failed to act to the

best of its ability, and explain why the absence of this information is of significance to the

progress of its investigation.”). The Court in Steel Authority of India made clear that

“[Commerce] cannot merely recite the relevant standard or repeat its facts available finding.

Rather, in order to satisfy its statutory obligations, [Commerce] must be explicit in its reason for

applying adverse inferences.” Steel Auth. of India, Ltd., 149 F. Supp. 2d at 930 (internal citations

omitted). Further, where the interested party has not submitted accurate and complete

information but does have the ability to comply with Commerce’s request, Commerce must

demonstrate “a willfulness on the part of the respondent or behavior below the standard of a

reasonable respondent in order to apply adverse inferences.” Id. at 930 n.11 (citing Nippon Steel

Corp. v. United States, 118 F. Supp. 2d 1366, 1378-79 (2000)); see also Nippon Steel Corp. v.

United States, 146 F. Supp. 2d 835, 840 (Ct. Int’l Trade 2001) (stating that in cases where the

omission is due to inadvertence, “the simple fact of a respondent’s failure to report information

within its control does not warrant an adverse inference.”).3

In the present case, Commerce properly made the additional finding required to apply

adverse inferences. In the Preliminary Results, from which the Final Results did not differ and

to which no changes were made, Commerce outlined Reiner Brach’s failure to provide the

3
In cases where the interested party claims an inability to comply with Commerce’s
request, Commerce must minimally find that the party had the ability to comply but did not do
so. See Steel Auth. of India, Ltd. 149 F. Supp. 2d at 930.
Court No. 01-00055 Page 24

requested home market sales data and cost of production figures as its basis for using total facts

available. See Preliminary Results, 65 Fed. Reg. at 54,207; see also Final Results, 66 Fed. Reg.

at 3546. It then indicated that “Reiner Brach acknowledged that it had the requested data in its

records and was capable of providing it to [Commerce], but nevertheless failed to provide a

complete response to the Department’s questionnaire. Thus, we find that Reiner Brach failed to

cooperate by not acting to the best of its ability with respect to its home market sales and cost

data.” Preliminary Results, 65 Fed. Reg. at 54,207. As to the cost of production figures, in the

Decision Memo, Commerce explained that a Reiner Brach official stated in verification that the

cost of production changed between the two periods of review, and the company could

distinguish costs on a month-by-month basis. See Decision Memo, Def. Pub. App. Ex. 2 at 4.

Commerce determined it did not have the required information “to conduct an accurate sales-

below-cost test for each review which would allow [Commerce] to choose the correct above the

cost of production home market sales for comparison with Reiner Brach’s U.S. sales.” Id.

To determine whether a respondent has cooperated to the best of its ability, Commerce

may make justifiable inferences based on the record before it. See Asociacion Colombiana de

Exportadores de Flores v. United States, 40 F. Supp. 2d 466, 472 (Ct. Int’l Trade 1999). This

Court has acknowledged that “Commerce must necessarily draw some inferences from a pattern

of behavior.” Borden, Inc. v. United States, No. 96-08-01970, 1998 WL 895890, at *1 (Ct. Int’l

Trade Dec. 16, 1998); see also Nippon Steel Corp., 146 F. Supp. 2d at 840; Mannesmannrohren-

Werke AG, 120 F. Supp. 2d at 1082-1087; see, e.g., Mannesmannrohren-Werke AG, 77 F. Supp.

2d at 1317. The facts of the case at hand demonstrate a pattern of behavior which makes

Commerce’s decision to use adverse inferences reasonable. Reiner Brach failed to provide
Court No. 01-00055 Page 25

information regarding home market sales of similar merchandise despite the clear language of the

questionnaire asking for information on “all sales” of the foreign like product in the home

market. It based its decision not to submit such information on the assumption that it only had to

submit information regarding home market sales of identical merchandise, but it never asked

Commerce to clarify whether its assumption was correct even in light of Commerce’s

supplemental questionnaire raising concerns regarding the submitted information. It then failed

to provide all of its information regarding home market sales of the identical merchandise and

did not seek to submit the information until verification, at which time Commerce would not

have sufficient opportunity to review and verify the information. Further, it failed to provide

Commerce with the actual costs of production for each period of review as requested in plain

terms by Commerce, despite the fact that the information was available to Reiner Brach and

Commerce gave it the opportunity to submit the information in a supplemental questionnaire. In

each of the supplemental questionnaires, Reiner Brach supplied vague answers from which

Commerce was not able to ascertain the nature or extent of the deficiencies until verification.

This cumulative evidence justifies Commerce’s finding that Reiner Brach failed to cooperate to

the best of its ability, and therefore Commerce’s decision to apply adverse inferences is

supported by substantial evidence and is otherwise in accordance with law.

III. The Department of Commerce’s decision to apply the 36 percent dumping margin is
supported by substantial evidence and is otherwise in accordance with law.

Plaintiffs argue that even if Commerce properly chose to apply total facts otherwise

available with adverse inferences, its choice of a 36 percent dumping margin is not supported by
Court No. 01-00055 Page 26

substantial evidence and is not otherwise in accordance with law. Plaintiffs state, “There is

nothing in [Commerce’s] determination that will support a 36% dumping margin as a reasonably

accurate estimate of Respondent’s actual rate, even with a built-in increase intended as a

deterrent for non-compliance.” (Pl. Br. at 41.) Plaintiffs posit the rate is outdated since it was

calculated in a less than fair value investigation eight years ago. Additionally, Plaintiffs state the

margin is not rationally related to Reiner Brach’s activities because the margin had been based on

sales by another German corporation, AG der Dillinger Hutterwerke (“Dillinger”), with greater

manufacturing capabilities as well as a different product line and different annual sales revenue.

Plaintiffs submit that the margin is not relevant because it is not rationally related to the current

level of dumping in the industry. (Pl. Br. at 40-43.)

Defendants support Commerce’s use of the 36 percent dumping margin by noting that the

rate is not outdated, is the current all others rate, and is the rate presently applicable to exports by

Plaintiffs as well as being the all others rate. Its use serves as a means of providing an incentive

for a respondent to cooperate in administrative reviews, and the Court of Appeals for the Federal

Circuit has acknowledged Commerce’s discretion, albeit not unbounded, in choosing sources and

facts upon which to rely where a respondent has been uncooperative. See F.lii De Cecco di

Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000). The rate

has not been discredited since the less than fair value investigation. Defendants also assert that it

was more appropriate to use the 36 percent margin rather than lower rates calculated in

subsequent reviews of Dillinger because Dillinger had cooperated with Commerce’s requests for

information while Reiner Brach had not. Defendants assert Commerce complied with the

requirement of 19 U.S.C. § 1677e(c) that “[w]hen [Commerce] . . . relies on secondary
Court No. 01-00055 Page 27

information rather than on information obtained in the course of an investigation or review,

[Commerce] . . . shall, to the extent practicable, corroborate that information from independent

sources that are reasonably at their disposal.” The rate came from a less than fair value

investigation of Dillinger and “there was no evidence on the record indicating that the business

practices of Reiner Brach differ significantly from those of other members of the German steel

industry.” (Def. Br. at 36.)

As noted, Commerce must corroborate secondary information used in an administrative

review. See 19 U.S.C. § 1677e(c). The SAA states “[c]orroborate means that the agencies will

satisfy themselves that the secondary information to be used has probative value.” SAA, 1994

U.S.C.C.A.N. at 4199. This Court has posited that “[i]n order to comply with the statute and the

SAA’s statement that corroborated information is probative information, Commerce must assure

itself that the margin it applies is relevant, and not outdated, or lacking a rational relationship to

[Respondent].” Ferro Union, Inc. v. United States, 44 F. Supp. 2d 1310, 1335 (Ct. Int’l Trade

1999). Commerce has broad, but not unrestricted, discretion in determining what would be an

accurate and reasonable dumping margin where a respondent has been found to be

uncooperative. See F. lii De Cecco di Filippo Fara S. Martino S.p.A., 216 F.3d at 1032

(“Particularly in the case of an uncooperative respondent, Commerce is in the best position,

based on its expert knowledge of the market and the individual respondent, to select adverse facts

that will create the proper deterrent to non-cooperation with its investigations and assure a

reasonable margin. Commerce’s discretion in these matters, however, is not unbounded.”). It

cannot impose “punitive, aberrational, or uncorroborated margins.” Id.

Generally margins have been invalidated where the margin also did not bear a rational
Court No. 01-00055 Page 28

relationship to the interested party, had been discredited, or other margins were available. See

Kompass Food Trading Int’l, etal. v. United States, No. 98-09-02848, 2000 Ct. Intl. Trade

LEXIS 92, at *16 n.6 (Ct. Int’l Trade July 31, 2000); see also F.lii De Cecco di Filippo Fara S.

Martino S.p.A., 216 F.3d at 1032-34; Am. Silicon Techs. v. United States, 110 F. Supp. 2d 992,

1003-04 (Ct. Int’l Trade 2000). In Kompass Food Trading International, this Court stated that

the fact that a margin was three years old, where it was otherwise rational and relevant, was an

insufficient basis to invalidate the margin. See Kompass Food Trading Int’l, 2000 Ct. Intl. Trade

LEXIS 92, at *16 n.6. Even in a case where an eight year old margin was invalidated, the reason

for the invalidation was because the margin bore no rational relationship to the respondent and

not because it was outdated. See id. The rate applied by Commerce in this case is the “all

others” rate that currently applies to Plaintiffs and has not been discredited to date. Commerce

was not required to select the rate determined for Dillinger in recent years because Dillinger,

unlike Reiner Brach, has cooperated by properly responding to Commerce’s requests for

information. “Here, it is clear, moreover, that the statute has no requirement that Commerce is

limited to the highest rate imposed on a cooperating company when selecting a rate for a non-

cooperating respondent.” F.lii De Cecco di Filippo Fara S. Martino S.p.A., 216 F.3d at 1032.

The margin selected serves to induce cooperation by respondents in administrative reviews

without being “punitive, aberrational or uncorroborated.” Therefore this Court holds that the use

of the 36 percent dumping margin is supported by substantial evidence and is otherwise in

accordance with law.
Court No. 01-00055 Page 29

CONCLUSION

This Court finds that Commerce’s use of total facts otherwise available with adverse

inferences and its use of the 36 percent dumping margin are supported by substantial evidence

and is otherwise in accordance with law. Therefore the Final Results is affirmed in its entirety.

___________________________
Gregory W. Carman
Chief Judge

Dated: June 4, 2002
New York, New York