Slip Op. 99-104
UNITED STATES COURT OF INTERNATIONAL TRADE
___________________________________
:
FERRO UNION, INC. AND :
ASOMA CORPORATION, :
:
Plaintiffs, :
:
v. : Court No. 97-11-01973
:
THE UNITED STATES, : Public Version
:
Defendant, :
:
and :
:
WHEATLAND TUBE COMPANY, :
:
Defendant-Intervenor. :
___________________________________:
[Commerce remand determination affirmed.]
Dated: October 6, 1999
Mayer, Brown & Platt (Simeon M. Kriesberg, Carol J. Bilzi,
and Peter C. Choharis) for plaintiffs.
David W. Ogden, Acting Assistant Attorney General, David M.
Cohen, Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice (Michele D. Lynch), Brian
Peck, Office of Chief Counsel for Import Administration, United
States Department of Commerce, of counsel, for defendant.
Schagrin Associates (Roger B. Schagrin and Alexander H.
Schaefer) for defendant-intervenor.
OPINION
RESTANI, Judge: On March 23, 1999, the court remanded the
final results of the Department of Commerce, International Trade
Administration (“Commerce” or “the Department”) in Certain Welded
COURT NO. 97-11-01973 PAGE 2
Carbon Steel Pipes and Tubes from Thailand, 62 Fed. Reg. 53,808
(Dep't Commerce 1997) (final results of antidumping admin. rev.)
[hereinafter "Final Results"]. See Ferro Union, Inc. v. United
States, 44 F. Supp.2d 1310 (Ct. Int’l Trade 1999).1
The case principally concerned whether Commerce properly
applied the standard of affiliated parties, pursuant to 19 U.S.C.
§ 1677(33) (1994), in concluding that Saha Thai was affiliated
with several companies based on common control by various family
groupings. The court affirmed Commerce’s interpretation of the
term “family” pursuant to 19 U.S.C. § 1677(33)(A), although it
found that Commerce had provided insufficient guidance as to the
full ramifications of its interpretation of the term,
specifically, that more distantly related family members than
those listed in the statute were to be included. The court also
instructed Commerce to revisit other factual determinations.
Commerce issued its remand determination on July 6, 1999.
See Remand Determination: Ferro Union, Inc. and Asoma Corporation
v. United States, Court No. 97-11-01973 [hereinafter “Remand
Results” or “RR”].
Standard of Review
In reviewing final determinations in antidumping duty
1
Familiarity with the court’s earlier opinion is
presumed.
COURT NO. 97-11-01973 PAGE 3
investigations, the court will hold unlawful those agency
determinations which are 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
In the Final Results, Commerce found that Saha Thai had
significantly impeded the review by failing to disclose
affiliations with two producers, Thai Tube and Thai Hong, as well
as affiliations with three home market customers (Companies A, B,
and C), and two members of the Siam Steel Group (Companies D and
E).2 62 Fed. Reg. at 53,809. Commerce found that Saha Thai was
affiliated with these companies based on common control by family
groupings, pursuant to 19 U.S.C. § 1677(33)(F).
Commerce concluded that Thai Tube/Hong was affiliated with
Saha Thai because Saha Thai’s Deputy Managing Director, Somchai
Lamatipanont, is the uncle of Thai Tube/Hong’s directors and
principal shareholders. Final Results, 62 Fed. Reg. at 53,813.
The court found that Commerce’s interpretation of “family” as
stated in 19 U.S.C. § 1677(33)(A), was reasonable, although Saha
Thai had insufficient notice that uncles and nephews were to be
2
The identities of these companies are stated in the
court’s confidential version of Ferro Union, and in Commerce’s
Remand Results.
COURT NO. 97-11-01973 PAGE 4
considered “family” for purposes of affiliation. The court
therefore ordered that, on remand, Commerce was to ignore the
possible affiliation with Thai Tube/Hong for purposes of
determining whether total adverse facts available could be
applied to Saha Thai. Ferro Union, 44 F. Supp.2d at 1332. The
court directed Commerce to determine whether an application of
adverse facts was warranted without considering these two
companies. Id.
Commerce found that Saha Thai was affiliated with Companies
A, B, and C, through common control by family groupings. Final
Results, 62 Fed. Reg. at 53,810. Commerce also found that Saha
Thai was affiliated with the members of the Siam Steel Group,
including Company D, a home market customer, and Company E, a
steel pipe producer. Id. at 53,816. It was unclear to the court
how Commerce defined these families, so it directed Commerce to
“inform itself of the nature of the relationships among these
people in order to assure itself that it has properly determined
that the persons involved are family members as contemplated by
the statute.” Ferro Union, 44 F. Supp.2d at 1326. Because
Commerce considered Saha Thai’s failure to disclose these
companies as further justification for its application of total
adverse facts, the court also directed Commerce to assure itself
COURT NO. 97-11-01973 PAGE 5
“that the affected companies should have been identified by Saha
Thai.” Id.
The court found that Commerce had not properly followed the
statutory framework for applying total adverse facts available in
its Final Results. See Ferro Union, 44 F. Supp.2d at 1328-1331.
Pursuant to the statute, Commerce shall use “facts otherwise
available” if:
(1) necessary information is not available on the record, or
(2) an interested party or any other person -
(A) withholds information that has been requested by
the 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, subject to subsections(c)(1) and (e)
of section 1677m of this title,
(C) significantly impedes a proceeding under this
subtitle, or
(D) provides such information but the information
cannot be verified as provided in section 1677m(i) of
this title . . .
19 U.S.C. § 1677e(a). In order to make an adverse inference,
Commerce must make the additional finding required by 19 U.S.C. §
1677e(b) that the party has “failed to cooperate by not acting to
the best of its ability.” The court found that, “Commerce is
obliged to explain why it concluded that a party failed to comply
to the best of its ability prior to applying adverse facts, and
it did not do so here.” Ferro Union, 44 F. Supp.2d at 1331.
“[Commerce] will decide whether it adequately defined affiliates
COURT NO. 97-11-01973 PAGE 6
for the purpose of identification of Companies A, B, C, D, and E,
whether lack of identification of these companies impeded the
investigation, and whether adverse facts are warranted based on
failure to act to the best of ability, given the development of
the law and the facts of this case.” Id. at 1332.
In the original Final Results, Commerce chose 29.89 percent
as the applicable total adverse facts available dumping margin.
In its remand determination, Commerce concluded that an
application of total adverse facts available was not warranted.
Commerce stated that the issue of whether to collapse Thai Tube
and Thai Hong into Saha Thai affected all sections of the
questionnaire, whereas once Thai Tube and Thai Hong are
disregarded, Commerce no longer found the use of total adverse
facts available warranted. RR, at 3-4. Commerce stated that it
continues to believe that the use of total adverse facts
available was warranted, but only if Thai Tube and Thai Hong are
taken into account.3 Id. at 4.
3
In an attempt to justify its original determination to
apply total adverse facts based on Saha Thai’s failure to
identify Thai Tube and Thai Hong, Commerce states an improper
interpretation of 19 U.S.C. § 1677e. Commerce stated that “to
impede a review is to obstruct its progress. If a party has
obstructed a proceeding, it cannot have cooperated to the best of
its ability.” Remand Results, at 4. Commerce’s reading does not
properly recognize the distinction between § 1677e(a)(2)(C),
invoking facts available when a party significantly impedes an
(continued...)
COURT NO. 97-11-01973 PAGE 7
Home market resellers
Commerce found that the absence of information on Companies
A, B, and C (collectively “home market resellers”)4 and the
affiliation with the Siam Steel Group only affected the home
market sales database. RR, at 5. The absence of this
information affected Commerce’s ability to determine “whether the
home market sales database was complete or whether downstream
sales made by these resellers were necessary.” RR, at 3.
Commerce considered whether it was appropriate to use the
remainder of Saha Thai’s questionnaire response, in accordance
3
(...continued)
investigation, and § 1677e(b), which provides for the use of an
adverse inference in selecting the specific available facts, when
a party fails to cooperate by not acting to the best of its
ability.
The court noted in Ferro Union, that a “respondent could
impede a review without intending to do so, for example, because
it did not understand the questions asked. The statute requires
an additional finding under Section 1677e(b) that a respondent
could have complied, and failed to do so.” 44 F. Supp.2d at 1330
n.44. If Commerce meant by its finding of “significantly
impeding” a failure to cooperate to the best of ability, it was
required to say so.
4
In Commerce’s preliminary and final results, only
Companies A and B were identified as home market customers and
resellers. Saha Thai placed information on the record prior to
the issuance of the Final Results identifying Company C as a home
market reseller as well. Commerce incorporated this information
into its remand analysis and referred to all three companies as
home market customers and resellers. RR, at 7 n.3.
COURT NO. 97-11-01973 PAGE 8
with 19 U.S.C. § 1677m(e) (1994),5 and found that the bulk of
Saha Thai’s information was usable. RR, at 5.
Commerce stated that its initial determination that Saha
Thai had “significantly impeded” the review, pursuant to 19
U.S.C. § 1677e(a)(2)(C) was “largely based” on the finding that
Saha Thai did not disclose information regarding Thai Tube and
Thai Hong. Excluding Thai Tube and Thai Hong from the analysis,
Commerce stated that it “no longer [found] it necessary to
conclude that Saha Thai . . . significantly impeded the review.”
RR, at 6. Commerce maintained the finding that Saha Thai was
affiliated with Companies A, B, and C, and concluded that Saha
Thai failed to provide complete information on these home market
resellers in a timely fashion, pursuant to 19 U.S.C. §
5
Section 1677m(e) provides in relevant part:
[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 the administering authority . . ., if -
(1) the information is submitted by the deadline
established for its submission,
(2) the information can be verified,
(3) the information is not so incomplete that it cannot
serve as a reliable basis for reaching the applicable
determination,
(4) the interested party has demonstrated that it acted
to the best of its ability in providing the information and
meeting the requirements established by the administering
authority . . . with respect to the information, and
(5) the information can be used without undue
difficulties.
COURT NO. 97-11-01973 PAGE 9
1677e(a)(2)(B), thereby justifying the use of facts otherwise
available. Commerce also found an adverse inference was
warranted, pursuant to § 1677e(b), because Saha Thai failed to
comply to the best of its ability in its responses regarding
these home market resellers. RR, at 6.
Upon an examination of the record evidence, Commerce found
that each family it identified as a control group consisted of
persons explicitly listed in § 1677(33)(A),6 and that therefore
Saha Thai should have known from the statutory definition of
family that these companies were potential affiliates.7 RR, at
13. Commerce found that Saha Thai should have identified these
companies because the initial questionnaire asked Saha Thai to
6
The section defines members of a family as “including
brothers and sisters (whether by the whole or half blood),
spouse, ancestors, and lineal descendants.” 19 U.S.C. §
1677(33)(A).
7
Specifically, the Sae Heng/Ratanasirivilai family,
which controls Company A, consists of Kim Hua Sae Heng (Saha
Thai’s Financial Director), his wife and children. RR, at 9.
The Lamatipanont family, which controls Company B, consists of
Somchai Lamatipanont (Saha Thai’s Deputy Managing Director), his
wife and children. Id. at 10. The Ampapankit family, which
controls Company C, consists of Limsiam Ampapankit (Saha Thai’s
Chairman of the Board of Directors), and his [ ]. Id. at 11.
Commerce ignored the other Saha Thai shareholders with the
surname Ampapankit because it could not identify their family
relationship.
The names of these families have various spellings in the
record and in Commerce’s Remand Results. The court continues to
use the spelling it used in Ferro Union.
COURT NO. 97-11-01973 PAGE 10
list all affiliated companies, and included a glossary of terms
which set forth the definition of affiliated persons under §
1677(33). Commerce emphasized that findings of affiliation based
on family relationships pre-dated the URAA, and had been upheld
by this court. See Ferro Union, 44 F. Supp.2d at 1327
(discussing affiliation finding based on family relationship in
Queen’s Flowers de Colombia v. United States, 981 F. Supp. 617
(Ct. Int’l Trade 1997)). Moreover, Commerce concluded that Saha
Thai had sufficient notice of the need to list the home market
resellers as affiliates because “[e]ach of the family groups that
had control over both Saha Thai and one of the home market
resellers was composed of individuals expressly included within
[19 U.S.C. § 1677(33)(A)].” RR, at 13.
Saha Thai had identified members of the Siam Steel Group as
potential affiliates, based on common management. Proprietary
Questionnaire Responses (July 16, 1996), 6-7, C.R. Doc. 2, Def.’s
App., Ex. 4, at 8-9. Commerce found that “by its own response,
Saha Thai acknowledged that it should report affiliates on the
basis of common ownership and management control by a family
group.” RR, at 13. Commerce found that Saha Thai’s failure to
report the three resellers was deliberate.8 Id. at 13-14.
8
Commerce disagrees that knowing failure is required
(continued...)
COURT NO. 97-11-01973 PAGE 11
The failure to report the companies was of significance
because Commerce did not have time to request that Saha Thai
provide information regarding downstream sales of Saha Thai
merchandise by the home market resellers, and Commerce was thus
unable to compile a complete home market sales database. RR, at
14. Commerce needed to know whether the sales to the affiliated
resellers were at arm’s-length in order to determine whether the
sales should be included in the calculation of normal value
(“NV”). See 19 U.S.C. § 1677b(a)(5) (1994) (“If the foreign like
product is sold . . . through an affiliated party, the prices at
which the foreign like product is sold . . . by such affiliated
party may be used in determining normal value.”)
Commerce compared the weight-averaged affiliated and
unaffiliated net prices by customer and product, and found that
two of the home market resellers failed the arm’s-length test.
RR, at 14. Commerce did not have information regarding the sales
prices of these companies, and therefore found that it did not
have a complete home market sales database from which to
calculate NV. Id. at 14-15. Commerce then decided to “make an
inference adverse to the interests of Saha Thai in applying facts
8
(...continued)
under 19 U.S.C. § 1677e(b). Whether some type of negligence will
suffice was not at issue in this case.
COURT NO. 97-11-01973 PAGE 12
available with respect to home market sales by these affiliated
resellers.” Id. at 15. For the companies which failed the
arm’s-length test, Commerce retained Saha Thai’s sales to these
customers in the home market sales database and “assigned to them
the highest net price by product control number as adverse
partial facts available.” Id.
Siam Steel Group
In the Final Results, Commerce found that Saha Thai was also
affiliated with Companies D and E, members of the Siam Steel
Group. 62 Fed. Reg. at 53,816. Upon re-examination, Commerce
continued to find that these companies are affiliated with Saha
Thai and that Saha Thai did not adequately respond to Commerce’s
questions regarding affiliates. Commerce, however, did not find
upon remand that Saha Thai’s failure to identify Companies D and
E was of significance, and decided that an application of partial
adverse facts available was unnecessary. RR, at 19. Although
Commerce stated that the NV calculation was affected by the
absence of Companies D and E, it was only affected to a small
extent. On remand, Commerce “made the necessary modifications to
Saha Thai’s reported data so that sales to Siam Steel Group
companies which were also Saha Thai end-user customers [were]
treated as sales to affiliated customers for purposes of
COURT NO. 97-11-01973 PAGE 13
conducting Commerce’s standard arm’s-length test.”9 Id. Because
none of the Siam Steel Group companies are resellers of Saha Thai
merchandise, Commerce concluded that downstream sales were not at
issue. Id.
Applying partial adverse facts available to the home market
sales database for the failure to identify the home market
resellers, Commerce calculated a revised dumping margin of 9.52
percent. RR, at 41. Because a complete substitute margin was
not selected, plaintiffs no longer raise the issue of
corroboration of a margin based on secondary data under 19 U.S.C.
§ 1677e(c).
Discussion
Plaintiffs, Ferro Union, Inc. and Asoma Corp. (collectively
“Ferro”), find that Commerce’s remand determination is
“substantially closer than were the Final Results to a
determination in accordance with the law and the record
evidence.” Pls.’ Comments at 1. Ferro disagrees with Commerce’s
application of partial adverse facts, but states that it does not
wish to expend further resources on another remand, and therefore
urges the court to affirm the Remand Results. Ferro nevertheless
9
Pursuant to this calculation, [ ] of the affiliated
home market end-user customers failed the arm’s-length test, [ ].
Sales to [ ] were excluded from Commerce’s analysis for the
remand determination. RR, at 19.
COURT NO. 97-11-01973 PAGE 14
makes three arguments regarding why Commerce’s application of
partial adverse facts was unlawful. Plaintiffs cannot have it
both ways: urging the court to affirm, but nevertheless asking
the court to find that Commerce’s remand results contain errors.
The court finds that by asking the court to affirm the Remand
Results, Ferro has waived its right to raise further issues. The
court will not, therefore, consider the alleged failures
regarding the application of partial adverse facts which Ferro
sets forth in its comments.10
Defendant-Intervenor, Wheatland Tube Company, argues that
Commerce should have applied total adverse facts available to
Saha Thai on remand, even without considering Saha Thai’s failure
10
Ferro argues that Commerce should not have applied
partial adverse facts because Saha Thai is not affiliated with
Companies A, B, and C on the grounds that Commerce failed to show
how the families were in a position to control Saha Thai’s
decisions regarding pricing, production, or cost. See 19 C.F.R.
§ 351.102(b) (1999) ("[Commerce] will not find that control
exists . . . unless the relationship has the potential to impact
decisions concerning the production, pricing, or cost of the
subject merchandise or foreign like product.").
Ferro also states that Saha Thai could not have known from
Commerce’s questionnaires that it was to consider Companies A, B
and C potential affiliates, and that therefore, the failure to
report these companies was not “deliberate.” See Ferro Union, 44
F. Supp.2d at 1331 (“In order to apply adverse facts available,
Commerce must . . . conclude that Saha Thai knew that Companies
A, B, C . . . could be considered affiliates and deliberately
chose not to disclose them as such.”).
Lastly, Ferro states that Commerce failed to check that Saha
Thai’s sales to Companies A and B were in the ordinary course of
trade.
COURT NO. 97-11-01973 PAGE 15
to list Thai Tube and Thai Hong as affiliates. Wheatland states
that Commerce’s finding that Saha Thai failed to provide complete
information on affiliations with Companies A, B, and C, and that
the failure was deliberate, warrants an application of total
adverse facts. Def.-Intervenor’s Comments at 3-4. Other than
this alleged error, however, Wheatland states that Commerce’s
remand results are supported by substantial evidence and are in
accordance with law.
The only issue on which any party arguably seeks a second
remand is whether Commerce’s application of partial adverse
facts, instead of total adverse facts available, was correct.11
The court, therefore, need only address this question.
Wheatland contends that the court’s instruction that
Commerce ignore Saha Thai’s failure to report a potential
affiliation with Thai Tube and Thai Hong was in error,12 but that
11
Although Wheatland asserts that a margin based on total
adverse facts available should have been applied by Commerce, it
is unclear whether Wheatland is seeking a second remand, or
asking the court to impose an alternative margin. The court
assumes remand is sought on this limited issue.
12
Wheatland states that the court’s reasoning in Ferro
Union is flawed because it stated that the “plain meaning” of
family includes uncles and nephews, but concluded that Saha Thai
did not have notice that “family” encompassed this relationship.
See Ferro Union, 44 F. Supp.2d at 1325-26. Wheatland ignores the
context of the court’s statement. The court did not find that
the meaning of “family” was explicit in the statute, and found it
(continued...)
COURT NO. 97-11-01973 PAGE 16
even without considering Saha Thai’s failure to report these two
companies, an application of total adverse facts available is
required in this case.
Wheatland emphasizes that Commerce found that Saha Thai
failed to provide complete information concerning its affiliation
with Companies A, B, and C, failed to report their downstream
sales, and that therefore, information necessary for an accurate
margin calculation was not on the record. Def.-Intervenor’s
Comments at 3. Commerce also found the failure to report these
affiliations was deliberate, and merited an application of
adverse inferences. See RR, at 13-14. Wheatland contends that
the data was so deficient that it precluded “any remotely
accurate calculation of normal value” and that Commerce’s
application of “adverse partial facts available fails to
recognize the extent to which the home market sales database was
12
(...continued)
necessary to determine, pursuant to Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),
whether Commerce’s construction of affiliates was permissible.
See Ferro Union, 44 F. Supp.2d at 1324.
The court found that the agency’s interpretation of family
was a permissible construction of the statute, not that the
statute was clear on its face. Therefore, it was not
inconsistent for the court to conclude that Commerce’s
interpretation of “family” was reasonable, but that Commerce
failed to place Saha Thai on notice that it would construe family
to encompass more relationships than those listed in the statute.
COURT NO. 97-11-01973 PAGE 17
compromised by the fact that no downstream sales information was
ever collected.” Def.-Intervenor’s Comments at 4. Wheatland
stresses that in its view, Saha Thai refused to cooperate, and
that the application of total adverse facts available was
warranted. Wheatland does not propose, however, that the 29.89
percent margin originally applied in the Final Results should be
the total facts available margin. Rather, Wheatland proposes a
margin of 17.28 percent, the highest calculated margin applied to
Saha Thai in a previous less than fair value investigation. See
Certain Circular Welded Carbon Steel Pipes and Tubes from
Thailand, 61 Fed. Reg. 18,375, 18,376 (Dep’t Commerce 1996)
(amended final results).
Commerce agreed with Wheatland that Saha Thai failed to
provide complete responses to the Department’s requests for
information on affiliates. Remand Results, at 27. The
Department found, however, that “applying partial adverse facts
available adequately addresses this deficiency.” Id. at 28. The
majority of Saha Thai’s reported sales in the home market
database did not fail Commerce’s arm’s-length test and were
“usable and unaffected by Saha Thai’s reporting errors.”13 Id.
13
Sales to the resellers which failed Commerce’s arm’s-
length test made up only [ ] percent of the home market sales
database. Remand Results, at 28.
COURT NO. 97-11-01973 PAGE 18
The Department stated that its NV calculation was based on an
“imperfectly reported database,” but found that these
deficiencies were addressed by the use of partial adverse facts
available. Id.
The court finds Wheatland’s arguments that there were “gross
deficiencies” in the information submitted unconvincing.
Commerce properly followed the court’s remand instructions
regarding whether the failure to identify Companies A, B, and C
warranted an application of adverse facts available. Commerce
defined the families at issue and found that these families
controlled Saha Thai.14 Commerce then determined the
significance of this failure by Saha Thai, and found that it only
affected the home market sales database. Because Commerce found
that Saha Thai had an understanding of what types of
relationships could constitute affiliation pursuant to 19 U.S.C.
§ 1677(33), based on Saha Thai’s admission that the Siam Steel
Group was a “potential affiliate,” Commerce determined that Saha
Thai failed to act to the best of ability, and that an adverse
inference was appropriate in accordance with 19 U.S.C. §
1677e(b). Commerce found, however, that this deficiency was
14
The court notes again that although Ferro tries to
argue that these families did not, in fact, control Saha Thai,
Ferro waived this argument by asking the court to affirm the
remand results in their entirety.
COURT NO. 97-11-01973 PAGE 19
limited in scope, and therefore addressed the deficiency by
applying adverse facts to a portion of the information and
calculating a margin based on Saha Thai’s own information. The
Department resorted to partial adverse facts in order to correct
a situation where the information was usable, albeit incomplete.
Commerce’s decision to use information submitted by Saha
Thai accords with Commerce’s statutory responsibility pursuant to
19 U.S.C. § 1677m(e), to use a party’s information even if it is
incomplete. As Commerce clarified in the Remand Results, the
“partial use of facts available in the calculation of normal
value does not . . . compromise the U.S. sales data; it affects
the results of the sales comparisons. This is a normal
consequence of the use of partial adverse facts available.”
Remand Results, at 28. Moreover, the information Commerce used
on remand was verified, and all parties agree that if the
application of partial adverse facts was lawful, the information
Commerce chose to use was proper. See Pls.’ Comments at 9-10;
Def.-Intervenor Resp. at 1.
Under the former statute any deliberate failure to cooperate
could warrant full adverse treatment because a party may not pick
and choose among the information it is requested to submit. See
Ad Hoc Comm. of AZ-NM-TX-FL Producers of Gray Portland Cement v.
COURT NO. 97-11-01973 PAGE 20
United States, 18 CIT 906, 915, 865 F. Supp. 857, 865 (1994).15
The court need not decide whether such treatment would be
permissible under the new statute based on these facts. The
court finds that Commerce’s selection of partial adverse facts,
instead of total adverse facts, was a reasonable choice. See
Toyota Motor Sales, U.S.A., Inc. v. United States, 15 F. Supp.2d
872, 882 (Ct. Int’l Trade 1998) (upholding Commerce’s
determination to apply partial adverse facts available). The
facts available statute is designed to reach a reliable margin,
even in the face of an uncooperative respondent. See 19 U.S.C. §
1677e(c) (when relying on secondary information, Commerce “shall,
to the extent practicable, corroborate that information from
independent sources . . . reasonably at [its] disposal.”).
Commerce’s approach here furthers the purpose of achieving a
reliable and accurate margin, because it recognizes that Saha
Thai only failed to provide information in one respect (the
information pertaining to the home market resellers). It also
15
As explained in Ad Hoc, under the old BIA standard,
generally Commerce resorted to “total BIA” for a “respondent
whose reporting or verification failure is so extensive as to
make its entire response unreliable.” Ad Hoc, 18 CIT at 915
n.21. The choice of the particular total BIA rate then depended
on the respondent’s level of cooperation. Commerce would apply
“partial BIA” when the respondent’s information was deficient in
limited respect, but Commerce did not consider a respondent’s
level of cooperation in the application of partial BIA. Id.
COURT NO. 97-11-01973 PAGE 21
furthers the goal of accuracy because Commerce used Saha Thai’s
own information, which is more likely to be an accurate
reflection of the company’s sales than other information. By
retaining the sales to Companies A and B in the home market sales
database and assigning to them the highest net price by product
control number, Commerce also preserved an adverse consequence
for Saha Thai’s failure to provide information on these home
market resellers. The court therefore upholds Commerce’s
application of partial adverse facts as in accordance with law
and supported by substantial evidence.
Accordingly, the court affirms the Remand Results addressed
herein.
________________________
Jane A. Restani
Judge
Dated: New York, New York
This 6th day of October 1999.