Slip Op. 09-127 

UNITED STATES COURT OF INTERNATIONAL TRADE 

____________________________________ 

 : 

SIDENOR INDUSTRIAL SL, : 

 : 

 Plaintiff, : 

 : Before: WALLACH, Judge 

 v. : Court No.: 07-00307 

 : 

UNITED STATES, : 

 : 

 Defendant, : PUBLIC VERSION 

 : 

 and : 

 : 

CARPENTER TECHNOLOGY CORP., : 

et al., : 

 : 

 Defendant-Intervenors. : 

 : 

[Plaintiff’s Motion for Judgment on the Agency Record is DENIED and the Agency’s 

Determination is AFFIRMED.] 

 Dated: October 30, 2009 

Riggle & Craven (David J. Craven and David A. Riggle) for Plaintiff Sidenor Industrial SL. 

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy, 

Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (L. 

Misha Preheim); and Deborah King, Office of Chief Counsel for Import Administration, U.S. 

Department of Commerce, of Counsel, for Defendant United States. 

Kelley Drye & Warren LLP (Mary T. Staley and Grace W. Kim) for Defendant-Intervenors 

Carpenter Technology Corporation, Electralloy Corporation, a Division of G.O. Carlson, Inc., 

and Valbruna Slater Stainless, Inc. 
2

OPINION

 

Wallach, Judge: 

I 

INTRODUCTION

This action arises out of the administrative review of an antidumping duty order 

conducted by the United States Department of Commerce (“Commerce”). Plaintiff Sidenor 

Industrial SL (“Sidenor”) challenges Commerce’s decision to apply adverse facts available 

(“AFA”) to calculate Sidenor’s dumping margin. Alternatively, Sidenor challenges the AFA 

dumping margin selected by Commerce. In addition, Sidenor argues that Commerce’s denial of 

its request to report its cost data on a fiscal year basis, rather than for the period of review, was 

an abuse of discretion. 

This court has jurisdiction pursuant to 28 U.S.C. § 1581(c). Because Commerce’s 

decisions are supported by substantial evidence and otherwise in accordance with law, 

Commerce’s determination in Stainless Steel Bar from Spain: Final Results of Antidumping 

Duty Administrative Review, 72 Fed. Reg. 42,395 (August 2, 2007) (“Final Results”) is 

affirmed. 

II 

BACKGROUND 

Commerce imposed an antidumping duty order on stainless steel bar from Spain in 1995. 

Amended Final Determination and Antidumping Duty Order: Stainless Steel Bar from Spain, 60 

Fed. Reg. 11,656 (March 2, 1995) (“AD Order”). In March 2006, Commerce published notice of 

the opportunity to request an administrative review of the AD Order for the period of review 

beginning March 1, 2005 and ending February 28, 2006. Antidumping or Countervailing Duty 

Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 71 
3

Fed. Reg. 10,642 (March 2, 2006). In response to this notice, Sidenor requested that Commerce 

conduct an administrative review of its U.S. sales of stainless steel bar. Letter from David J. 

Craven, Riggle & Craven, to Carlos M. Gutierrez, Secretary of Commerce (March 28, 2006), 

Public Record (“P.R.”) 1. Commerce thereafter initiated an administrative review of Sidenor’s 

sales of stainless steel bar for the period of review. Initiation of Antidumping and Countervailing 

Duty Administrative Reviews, 71 Fed. Reg. 25,145 (April 28, 2006), P.R. 2. 

Commerce sent Sections A, B, and C of its antidumping duty questionnaire to Sidenor on 

May 5, 2006.1 Sidenor responded with a letter dated May 19, 2006; in the letter, Sidenor 

requested that Commerce clarify certain aspects of the questionnaire. Letter from David J. 

Craven, Riggle & Craven, to Carlos M. Gutierrez, Secretary of Commerce (May 19, 2006), P.R. 

8. Sidenor also requested authorization from Commerce to report its cost of production and 

constructed value data for its 2005 fiscal year rather than for the period of review (March 1, 2005 

through February 28, 2006). Id. In responding to Sidenor’s requests, Commerce expressed its 

willingness to consider authorizing Sidenor to report its cost data on the basis of the 2005 fiscal 

year, provided that Sidenor demonstrate that such a shift in the cost reporting would not distort 

costs for the period of review. Letter from Laurie Parkhill, Office Director, Department of 

Commerce, to David J. Craven, Riggle & Craven (May 30, 2006), P.R. 12. Commerce requested 

 1

 The antidumping questionnaire is designed to elicit all information necessary to determine whether a 

respondent is dumping and, if so, to calculate the dumping margin. See Department of Commerce, Antidumping 

Manual (February 10, 1998) (“AD Manual”), Chap. 6 at 11. The antidumping questionnaire normally consists of 

five sections (A through E) and several appendices. Id., Chap. 4 at 2-8. Section A is designed to elicit general 

information about a respondent’s corporate structure and business practices as well as information concerning the 

allegedly dumped goods. Id., Chap. 4 at 2. Section B is designed to assist Commerce in determining the normal 

value of the goods; it requires respondents to list sales transactions of the subject goods in the home country market 

(or a third-country market, where appropriate). Id., Chap. 4 at 3. Section C is designed to assist Commerce in 

determining the U.S. price against which normal value is compared. Id., Chap. 4 at 5. Section D inquires about the 

costs of producing the goods. Id. Section E inquires about the value added in the U.S. to the goods prior to delivery 

to unaffiliated U.S. customers, if any. Id., Chap. 4 at 6. 

. 
4

that Sidenor answer four specific questions, the answers to which would assist Commerce in 

determining whether a shift in the cost reporting period would lead to distortion in the data. Id. 

Sidenor “did not provide the specific information” that Commerce requested. Memorandum from 

Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, to David M. Spooner, 

Assistant Secretary for Import Administration, Re: Issues and Decision Memorandum for the 

Antidumping Duty Administrative Review of Stainless Steel Bar from Spain for the Period of 

Review March 1, 2005, through February 28, 2006 (July 26, 2007), P.R. 84 (“Final Decision 

Memo”), 2. 

Subsequently, Commerce published the preliminary results of this administrative review. 

Stainless Steel Bar from Spain: Preliminary Results of Antidumping Duty Administrative 

Review, 72 Fed. Reg. 14,522 (March 28, 2007) (“Preliminary Results”). In the Preliminary 

Results, Commerce found that the statutory criteria for application of an AFA rate to Sidenor 

were met. Id. at 14,522-24. Commerce selected an AFA rate of 62.85%, the highest rate 

established by Commerce in the initial less-than-fair-value (“LTFV”) investigation. Commerce 

determined that this rate remained both reliable and relevant. Id. at 14,524. 

Sidenor filed a case brief challenging Commerce’s conclusions with respect to its 

questionnaire responses and Commerce’s application of total adverse facts available. Commerce 

rejected Sidenor’s arguments. See Final Decision Memo. Sidenor was assigned a final AFA rate 

of 62.85%. Final Results at 42,395. 
5

III 

STANDARD OF REVIEW 

The court will hold unlawful a determination by Commerce resulting from an 

administrative review of an antidumping duty order if that determination is “unsupported by 

substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 

1516a(b)(1)(B)(i); see 19 U.S.C. § 1516a(a)(2)(B)(iii). 

A determination is supported by substantial evidence if the record contains “evidence that 

a reasonable mind might accept as adequate to support a conclusion.” Cleo Inc. v. United States, 

501 F.3d 1291, 1296 (Fed. Cir. 2007) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 

477, 71 S. Ct. 456, 95 L. Ed. 456 (1951)). While the court must consider contradictory evidence, 

“the substantial evidence test does not require that there be an absence of evidence detracting 

from the agency’s conclusion, nor is there an absence of substantial evidence simply because the 

reviewing court would have reached a different conclusion based on the same record.” Id. (citing 

Universal Camera Corp., 340 U.S. at 487-88); see also Am. Silicon Techs. v. United States, 261 

F.3d 1371, 1375-76 (Fed. Cir. 2001); U.S. Steel Group v. United States, 96 F.3d 1352, 1356-57 

(Fed. Cir. 1996). 

To determine whether Commerce’s interpretation and application of the antidumping 

statute at issue is otherwise “in accordance with law,” the court must conduct the two-step 

analysis articulated by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). Under the first 

step of the Chevron analysis, the court must ascertain “‘whether Congress has directly spoken to 

the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for 

the court, as well as the agency, must give effect to the unambiguously expressed intent of 
6

Congress.’” Wheatland Tube Co. v. United States, 495 F.3d 1355, 1359 (Fed. Cir. 2007) 

(quoting Chevron, 467 U.S. at 842-43). 

The court reaches the second step of the Chevron analysis only “‘if the statute is silent or 

ambiguous with respect to the specific issue.’” Id. (quoting Chevron, 467 U.S. at 843). Under 

this second step, the court must evaluate whether Commerce’s interpretation “is based on a 

permissible construction of the statute.” Chevron, 467 U.S. at 843. The agency’s construction 

need not be the only reasonable interpretation or even the most reasonable interpretation. See

Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S. Ct. 2441, 57 L. Ed. 2d 337 (1978) 

(citations omitted). The court must defer to Commerce’s reasonable interpretation of a statute 

even if it might have adopted another interpretation had the question first arisen in a judicial 

proceeding. Id. (citations omitted). 

IV 

DISCUSSION 

 Sidenor challenges three decisions made by Commerce during the course of the 

administrative review. First, Sidenor argues that Commerce’s denial of its request to report its 

cost data on a fiscal year basis, rather than for the period of review, was an abuse of discretion. 

Second, Sidenor contests Commerce’s decision to apply adverse facts available to calculate its 

dumping margin. Third, Sidenor argues that even if Commerce’s decision to calculate its 

dumping margin on the basis of adverse facts available is affirmed, the margin selected by 

Commerce should be lower. Each of Commerce’s determinations survives these challenges. 

Commerce reasonably exercised its discretion to deny Sidenor’s request to submit information in 

a form different than that originally requested. Commerce’s decision to calculate Sidenor’s 

dumping margin on the basis of adverse facts available is supported by substantial evidence and 
7

in accordance with law. The AFA rate selected by Commerce is supported by substantial 

evidence and in accordance with law. 

A 

Commerce Reasonably Exercised Its Discretion To Deny Sidenor’s Request To Submit 

Information In A Form Different Than That Originally Requested 

Sidenor argues that Commerce’s denial of its request to report its cost data on a fiscal 

year basis, rather than for the period of review, was an abuse of discretion. See Motion for 

Judgment on the Agency Record Submitted Pursuant to Rule 56.2 of the Rules of the U.S. Court 

of International Trade (“Plaintiff’s Motion”) at 13. Commerce generally allows a respondent to 

shift its cost-reporting period if the respondent shows that such a shift will not distort the costs 

for the period of review. Final Decision Memo at 2. Sidenor did not make that showing. Id. at 3. 

After receiving Sidenor’s request for authorization to shift the cost-reporting period from 

the period of review to the fiscal year, Commerce responded that it “may agree to Sidenor’s 

request . . . only if [Commerce] can establish that the shifted costs will not distort the costs for 

the period of review.” Letter from Laurie Parkhill, Office Director, Department of Commerce, to 

Sidenor Industrial Ltd. c/o Donald J. Craven (May 20, 2006), P.R. 12. To that end, Commerce 

asked that Sidenor respond to four specific questions. Id. Sidenor did not respond to these 

questions. Final Decision Memo at 2. Two months later, Commerce followed up with a second 

letter reiterating its request. Id. Although Sidenor responded, it failed to provide the information 

that Commerce requested. Id. Commerce thereafter concluded that “without Sidenor’s response . 

. . , we could not determine whether a shift in the reporting period was reasonable.” Id.

Accordingly, Commerce did not abuse its discretion in denying Sidenor’s request. 
8

B 

Commerce’s Decision To Calculate Sidenor’s Dumping Margin On The Basis Of Adverse 

Facts Available Is Supported By Substantial Evidence And In Accordance With Law 

 When Commerce uses the phrase “adverse facts available,” it is referring to a two-step 

procedure: (1) resort to “facts otherwise available” when information it has requested is 

unavailable or deficient, 19 U.S.C. § 1677e(a); and (2) use of “adverse inferences” in selecting 

from the “facts otherwise available” when “an interested party has failed to cooperate by not 

acting to the best of its ability,” 19 U.S.C. § 1677e(b). See Ad Hoc Shrimp Trade Action 

Committee v. United States, 616 F. Supp. 2d 1354, 1368-69 (CIT 2009) (citing Jinan Yipin Corp 

v. United States, 526 F. Supp. 2d 1347, 1353 n.7 (CIT 2008)). Sidenor argues that Commerce 

erred with respect to both steps. 

First, Sidenor contends that the requisite statutory criteria for determinations on the basis 

of “facts otherwise available” have not been met. Second, Sidenor contends that the application 

of adverse inferences is inappropriate because it acted to the best of its ability in responding to 

Commerce’s requests for information. Lastly, Sidenor argues that Commerce is not authorized 

to calculate a respondent’s dumping margin on the basis of adverse facts available unless it has 

conducted a verification of the information submitted during the course of the administrative 

review. 

1 

Commerce’s Resort To “Facts Otherwise Available” Was Appropriate Because Sidenor 

Did Not Provide The Requested Information

Sidenor contends that the requisite statutory criteria for determinations on the basis of 

“facts otherwise available” have not been met. Plaintiff’s Motion at 15. The relevant statute 

directs Commerce to use the facts otherwise available in making determinations in antidumping 

proceedings when any one of the following conditions is met: 
9

(1) necessary information is not available on the record; or (2) an interested party 

. . . (A) withholds information that has been requested by [Commerce] . . . , (B) 

fails to provide such information by the deadlines for submission or in the form 

and manner requested . . . , (C) significantly impedes a proceeding . . . , or (D) 

provides such information but the information cannot be verified . . . . 

19 U.S.C. ' 1677e(a). Before using the facts otherwise available, however, Commerce is 

required to notify the responding party of the deficiency and, to the extent practicable, permit 

that party to remedy or explain the deficiency. Id. ' 1677m(d). Commerce must consider 

information submitted by an interested party if the following five criteria are met: 

(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] . . . with respect to the information, and 

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

Id. ' 1677m(e). If, however, Commerce finds the party’s explanation of the deficiency either 

untimely or insufficient, and one of the five criteria in 19 U.S.C. ' 1677m(e) is not met, 

Commerce can disregard all or part of the original and subsequent responses. Id. ' 1677m(d). 

Here, Commerce determined that four of the conditions enumerated in 19 U.S.C. ' 1677e 

were present; the existence of only one condition is sufficient for Commerce to make a 

determination on the basis of facts otherwise available. According to Commerce, “necessary 

information was not available on the record and Sidenor withheld critical information requested 

by Commerce, failed to provide information in the form and manner requested, and significantly 

impeded the proceeding.” Defendant’s Memorandum in Opposition to Plaintiff’s Rule 56.2 

Motion for Judgment Upon the Agency Record (“Defendant’s Response”) at 14. These findings 

are supported by substantial evidence. 
10

When determining normal value, Commerce normally calculates costs “based on the 

records of the exporter . . . , if such records are kept in accordance with the generally accepted 

accounting principles of the exporting country . . . and reasonably reflect the costs associated 

with the production and sale of the merchandise.” 19 U.S.C. ' 1677b(f)(1)(A). In order to 

determine whether the cost data provided by an exporter is reasonably allocated to the subject 

merchandise, Commerce first “ensure[s] that the aggregate amount of the reported costs captures 

all costs incurred by the respondent in producing the merchandise under consideration.” 

Memorandum from Mark Todd, Senior Accountant, Department of Commerce, to the file 

(March 22, 2007), Confidential Record (“C.R.”) 29 (“AFA Memo”), 2. Commerce does so by 

reconciling the cost data submitted by the respondent to the respondent’s audited financial 

statements. Id. This court has recognized that “Commerce must ensure that [a respondent’s] 

reported costs capture all of the costs incurred by the respondent in producing the subject 

merchandise” before it can appropriately use that respondent’s cost allocation methodology. 

Myland Indus., Ltd. v. United States, 2007 WL 3120293, *6 (CIT 2007). Sidenor’s failure to 

furnish to Commerce (1) actual documentation from its normal books and records to support its 

reported direct materials cost and (2) a reconciliation between its sales and production figures 

made it impossible for Commerce to do so. 

Sidenor claimed that it calculated its direct material costs by subtracting the nonmaterial 

costs from the total production costs for the final products. Section D Antidumping 

Questionnaire, Response of Sidenor Industrial SL (September 19, 2006), C.R. 12, D-24 to D-25. 

Sidenor did not, however, provide Commerce with appropriate documentation to support this 

assertion. 
11

Commerce provided Sidenor with the opportunity to remedy or explain the deficiencies 

in its response, as required by 19 U.S.C ' 1677m(d), by issuing three supplemental 

questionnaires requesting a proper cost reconciliation and supporting information for the direct 

materials cost for the merchandise under consideration. Final Decision Memo at 10. Commerce 

explained that the purpose of its request “was to obtain support from Sidenor’s normal books and 

records for the information included in [certain of Sidenor’s] exhibits.” Id. at 5. Yet, Sidenor 

“failed to provide . . . supporting documentation linking its reported direct material costs to its 

financial accounting records maintained in the normal course of business.” AFA Memo at 2; see 

also Final Decision Memo at 7. Commerce found this failure particularly problematic because 

Sidenor’s direct material costs account for [[ a large ]] percent of the merchandise under 

consideration and only [[ a small ]] percent of Sidenor’s stainless steel bar was reported as 

merchandise under consideration (with [[ a large ]] percent reported as sold outside of the United 

States and the home market). AFA Memo at 6. 

Sidenor maintains that it “is of no moment” that it did not reconcile its sales directly to 

the costs because, “[s]ince both [sales and costs] were reconciled to the audited financial 

statement, they necessarily reconcile to each other.” Plaintiff’s Motion at 15. This misses the 

point; the fact remains that Sidenor did not provide to Commerce the information necessary “to 

gain an understanding of Sidenor’s reporting methodology.” AFA Memo at 3; see also Final 

Decision Memo at 7. Commerce found that Sidenor’s failure to provide the requested 

reconciliations left it “with no support or assurance that the quantity of [stainless steel bar] 

reported as merchandise under consideration is complete and accurate.” AFA Memo at 6. 

As a result of Sidenor’s failure to furnish the requested documentation, necessary 

information was neither on the record (19 U.S.C. ' 1677e(a)(1)) nor provided in the form and 
12

manner requested by Commerce (19 U.S.C. ' 1677e(a)(2)(B)). Further, by failing to furnish the 

information, Sidenor withheld information (19 U.S.C. ' 1677e(a)(2)(A)) and significantly 

impeded the conduct of the administrative review (19 U.S.C. ' 1677e(a)(2)(C)). Accordingly, 

Commerce’s decision to rely on facts otherwise available to calculate Sidenor’s dumping margin 

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

2 

Commerce Properly Applied Adverse Inferences When Selecting Amongst The Facts 

Otherwise Available Because Sidenor Did Not Act To The Best Of Its Ability

Commerce is authorized to employ adverse inferences when selecting from the facts 

otherwise available if it finds that an interested party “has failed to cooperate by not acting to the 

best of its ability.” 19 U.S.C. ' 1677e(b); see also Statement of Administrative Action 

accompanying the Uruguay Round Agreements Act, H.R. Doc. No. 103-316 (“SAA”)2 at 870 

(1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4199. The Federal Circuit has interpreted this 

language to mean that a party must “do the maximum it is able to do” to comply with 

Commerce’s request. Nippon Steel Corporation v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 

2003). 

“Whether a respondent has done the maximum it was able to do to comply with 

Commerce’s requests involves both objective and subjective inquiries.” Fujian Lianfu Forestry 

Co. v. United States, 2009 Ct. Int’l Trade LEXIS 92, *17 (CIT 2009). Under the objective 

inquiry, Commerce must demonstrate “‘that a reasonable and responsible importer would have 

 2

 The Uruguay Round Agreements Act was signed into law on December 8, 1994. The Act approved the new 

WTO Agreement, and the agreements annexed thereto, “resulting from the Uruguay Round of multilateral trade 

negotiations [conducted] under the auspices of the General Agreement on Tariffs and Trade.” 19 U.S.C. § 

3511(a)(1). The Statement of Administrative Action approved by Congress to implement the Agreements is 

regarded as “an authoritative expression by the United States concerning the interpretation and application of the 

Uruguay Round Agreements and [the Uruguay Round Agreements] Act in any judicial proceeding in which a 

question arises concerning such interpretation or application.” 19 U.S.C. § 3512(d). 
13

known that the requested information was required to be kept and maintained under the 

applicable statutes, rules, and regulations.’” Id. (quoting Nippon Steel, 337 F.3d at 1382-83). 

Under the subjective inquiry, Commerce must demonstrate that a respondent’s failure to 

promptly produce the requested information “‘is the result of the respondent’s lack of 

cooperation in either: (a) failing to keep and maintain all required records, or (b) failing to put 

forth its maximum efforts to investigate and obtain the requested information from its records.’” 

Id. at *17-18 (quoting Nippon Steel, 337 F.3d at 1382-83). 

With respect to the objective component of the inquiry, “[p]arties and attorneys filing 

documents with the Department of Commerce have an obligation to provide complete and 

correct information.” PAM, S.p.A. v. United States, 2009 U.S. App. LEXIS 21118, *6 (Fed. Cir. 

2009). Moreover, a respondent has “‘a statutory obligation to prepare an accurate and complete 

record in response to questions plainly asked by Commerce.’” Fujian, 2009 Ct. Int’l Trade 

LEXIS 92 at *24-25 (citing Tung Mung Dev. v. United States, 25 CIT 752, 758 (CIT 2001)). 

Here, Commerce did not request that Sidenor keep its books and records a certain way; it asked 

that Sidenor provide information that would assist Commerce in understanding how certain 

financial data related to the information contained in its normal books and records. Sidenor did 

not provide this information. 

With respect to the subjective component of the inquiry, Commerce afforded Sidenor 

several opportunities to provide the requested reconciliations and documentation.3 Because the 

requested information was within Sidenor’s control, Commerce found that Sidenor’s failure to 

furnish the requested information was effectively a failure to act to the best of its ability. Final 

Decision Memo at 12. 

 3

 For a more detailed discussion of these opportunities, see Section IV.B.1. 
14

Sidenor disputes this finding and claims that it did act to the best of its ability. Plaintiff’s 

Motion at 19. In support of this claim, Sidenor focuses on “reporting methodologies, conversion 

costs, cost variances, and the overall cost reconciliation.” Final Decision Memo at 4; see

Plaintiff’s Motion at 19-30. Sidenor ignores what Commerce characterizes as “the primary 

reason for [its] finding that Sidenor did not cooperate to the best of its ability, [namely] Sidenor’s 

failure to provide adequate explanations and requested documentation linking its reported directmaterials cost to cost-accounting records it maintains in the normal course of business.” Final 

Decision Memo at 4; see also AFA Memo at 2-5 (discussing Sidenor’s failure to provide proper 

data for an overall cost reconciliation and for a quantity reconciliation between reported sales 

and production quantities). 

Thus, Commerce’s decision to apply adverse inferences when selecting from the facts 

otherwise available is supported by substantial evidence. 

3 

Commerce’s Authority To Calculate A Respondent’s Dumping Margin On The Basis Of 

Adverse Facts Available Does Not Depend On Whether It Has Conducted A Verification 

Sidenor argues that Commerce cannot calculate its dumping margin on the basis of 

adverse facts available because it “was not subject to, and did not fail, a verification.” Plaintiff’s 

Motion at 10. Sidenor does not cite to any authority for this proposition.4 See id. at 8-11. 

 4

 When asked at oral argument to provide citation to authority in support of this argument, Sidenor responded 

that “this case is a difficult case to cite specific legal authority [for].” In fact, Sidenor appears to have abandoned 

this argument. At oral argument, Sidenor clarified that “the argument is not that . . . AFA cannot be assigned in the 

absence of verification. Certainly it can be. . . . But the facts here are different.” In any event, the court interprets 

Sidenor’s failure to support its argument with citation to authority as tantamount to consent to denial of its argument. 

“‘[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are 

deemed waived. It is not enough merely to mention a possible argument in the most skeletal way, leaving the court 

to do counsel’s work, create the ossature for the argument, and put flesh on its bones.’” Fujian Lianfu Forestry Co. 

v. United States, 2009 Ct. Int’l Trade LEXIS 92, *53 (CIT 2009) (quoting United States v. Zannino, 895 F.2d 1, 17 

(1st Cir. 1990)); see also Fagersta Stainless AB v. United States, 577 F. Supp. 2d 1270, 1279 n.6 (CIT 2008). 

“Briefs supporting motions for judgment on the agency record filed in actions arising under 28 U.S.C. ' 1581(c) 

‘must include the authorities relied on and the conclusions of law deemed warranted by the authorities.’” MTZ 

Polyfilms, Ltd. v. United States, 2009 Ct. Intl. Trade LEXIS 123, *9 (quoting USCIT Rule 56.2(c)(2)) (emphasis 
15

The antidumping statute establishes the criteria that must be met in order to justify the 

use of adverse facts available to calculate a respondent’s dumping margin; verification is not 

among the criteria listed. See 19 U.S.C. ' 1677e(a) (use of “facts otherwise available”) and 19 

U.S.C. ' 1677e(b) (use of adverse inferences in selecting from the facts otherwise available). 

The applicable statute requires verification in the context of an antidumping administrative 

review only if a domestic party makes a timely request for verification and either no verification 

has been performed in the prior two administrative reviews or good cause is shown. 19 U.S.C. '

1677m(i). The applicable regulation requires verification only if a domestic party makes a 

timely request for verification and no verification has been performed in the prior two 

administrative reviews or if good cause is shown. 19 C.F.R. ' 351.307(b). These conditions are 

absent in the challenged review: Sidenor has not demonstrated that a domestic party requested 

verification of its information, and this is the first administrative review of the AD Order. 

Moreover, this court has found that a respondent’s act of purposefully withholding or providing 

misleading information is, in itself, grounds for the application of adverse facts available. See

Shanghai Taoen Int’l Trading Co. v. United States, 29 CIT 189, 195, 360 F. Supp. 2d 1339, 1345 

(CIT 2005). 

Accordingly, Sidenor’s verification argument cannot succeed. 

 

added in MTZ). “Failure to enforce [such requirements] will ultimately deprive [the appellate system] in substantial 

measure of that assistance of counsel which the system assumes.” Carducci v. Regan, 714 F.2d 171, 230 U.S. App. 

D.C. 80 (D.C. Cir. 1982). 
16

C 

The AFA Rate Selected By Commerce Was Supported By Substantial Evidence And 

Otherwise In Accordance With Law 

 Sidenor contends that, even if Commerce were correct in calculating its dumping margin 

on the basis of adverse facts available, the rate selected by Commerce is inappropriate for two 

reasons. First, Sidenor contends that the AFA rate was not corroborated. Second, Sidenor argues 

that the AFA rate is “aberrational” and “punitive.” 

1 

Commerce Properly Corroborated The AFA Rate 

Sidenor asserts that Commerce did not corroborate the AFA rate. Plaintiff’s Motion at 34. 

This portion of Plaintiff’s Motion contains no citations to authority, statutory or otherwise.5

 See

id. at 34-35. According to Sidenor, “the sole basis for selecting this rate is that it was an adverse 

rate that applied to a company related to Sidenor in the original investigation. However, this is 

not a reasonable basis for corroboration.” Id. at 34. Sidenor further argues that “[t]he rate is also 

not corroborated for time. The selected rate is from a period many years prior to the [period of 

review] at issue. There is no showing that it still reflects the current rate . . . .” Id. at 35. 

Commerce properly corroborated the AFA rate within the applicable legal framework. 

Commerce is explicitly authorized to rely on “information derived from [a] previous 

administrative review or any other information placed on the record,” including information 

derived from the petition, in establishing an AFA rate. PAM, S.p.A., 2009 U.S. App. LEXIS 

21118 at *7 (citing 19 U.S.C. ' 1677e(b)). Information from a prior segment of the proceeding 

(for example, the AFA rate established in the initial LTFV investigation) is characterized as 

“secondary information.” SAA at 870, 1994 U.S.C.C.A.N. at 4199. When Commerce uses 

 

5

 Plaintiff’s failure to cite authority for this argument is, in effect, a consent to denial of its argument. See note 4, 

supra. 
17

secondary information, it is required “to the extent practicable . . . [to] corroborate that 

information from independent sources that are reasonably at [its] disposal.” 19 U.S.C. § 1677e(c) 

(emphasis added). The Federal Circuit has interpreted Congress’s purpose in enacting the 

corroboration requirement as follows: 

It is clear from Congress’s imposition of the corroboration requirement in 19 

U.S.C. ' 1677e(c) that it intended for an adverse facts available rate to be a 

reasonably accurate estimate of the respondent’s actual rate, albeit with some 

built-in increase intended as a deterrent to non-compliance. Congress could not 

have intended for Commerce’s discretion to include the ability to select 

unreasonably high rates with no relationship to the respondent’s actual dumping 

margin. 

F.Lii de Cecco di Filippo Fara S. Martino S.p.A., 216 F.3d 1027, 1032 (Fed. Cir. 2000). To 

corroborate secondary information, Commerce must find that “the secondary information to be 

used has probative value.” SAA at 870, 1994 U.S.C.C.A.N. at 4199. In addition, “Commerce 

needs to demonstrate how the selected proxy satisfies the De Cecco standard.” Fujian, 2009 Ct. 

Int’l Trade LEXIS 92 at *14. If Commerce determines that it is not “practicable” to tie the 

selected AFA rate to the actual respondent, Commerce must explain why. Id. at *15. 

Commerce evaluates whether secondary information has probative value by assessing its 

reliability and relevance. KYD, Inc. v. United States, 613 F. Supp. 2d 1371, 1378 (CIT 2009); 

Mittal Steel Galati S.A. v. United States, 491 F. Supp. 2d 1273, 1278 (CIT 2007) (citing Ball 

Bearings and Parts Thereof from France, Germany, Italy, Japan, Singapore, and the United 

Kingdom: Final Results of Antidumping Duty Administrative Reviews, 70 Fed. Reg. 54,711, 

54,712–13 (September 16, 2005)). The reliability of an AFA rate is assessed by determining 

whether the rate was reliable when first used. See KYD, 613 F. Supp. at 1379 (citing Tianjin 

Mach. Imp. & Exp. Corp. v. United States, 2007 Ct. Int’l Trade LEXIS 137, *44 (CIT 2007)). 

The relevance of an AFA rate is measured against “‘past practices in the industry in question.’” 
18

Id. at 1380 (quoting D & L Supply Co. v. United States, 113 F.3d 1220, 1223-24 (Fed. Cir. 

1997)) and Shanghai Taoen, 29 CIT at 197, 360 F. Supp. 2d at 1346). 

In this case, Commerce stated that it “reviewed all potential rates in the history of the 

proceeding which could be applied to Sidenor as an [AFA] rate in this segment of the 

proceeding.” Final Decision Memo at 15. The potential rates available for Commerce were from 

the initial LTFV investigation; these included the 7.7% weighted-average margin calculated for a 

cooperative respondent, the 25.77% all-others rate, and the 62.85% rate calculated for a noncooperative respondent. Id. Commerce “found the rate of 62.85 percent to be reliable in the 

investigation” and, “[b]ecause the information was supported by source documents, . . . 

determine[d] that the information is still reliable.” Id. at 17. Commerce found that the rate 

remained reliable because it has not been judicially discredited and because there was no new 

information that called into question its reliability. Id. at 18. With respect to relevance, 

Commerce evaluated whether there were any circumstances that would render the margin 

irrelevant. Id. According to Commerce, such circumstances might include judicial invalidation 

or a finding that the rate was based on another company’s uncharacteristic business expense. Id. 

Commerce found “that [such] unusual circumstances . . . are absent in the instant review and, 

therefore, the selected rate retains its relevance.” Id. With respect to the De Cecco standard, 

Commerce explained that “because Sidenor is a first-time participant in the current 

administrative review . . . , there are no prior weighted-average dumping margins that were ever 

calculated for Sidenor in prior segments of the proceeding.” Id. at 19. 

Thus, because Commerce found that the AFA rate applied in the initial LTFV 

investigation remained reliable and relevant, and because Commerce explained why it was not 
19

practicable to demonstrate that the rate was a reasonable approximation of Sidenor’s actual rate, 

Commerce properly corroborated the rate for use in this administrative review. 

2 

The AFA Rate Is Neither “Aberrational” Nor “Punitive”

Sidenor also argues that the rate selected by Commerce cannot be “aberrational” or 

“punitive.” Plaintiff’s Motion at 35. Sidenor asserts that “if an [AFA] rate is selected, it should 

reasonably reflect the rate that would have applied had the data been able to be used with a 

reasonable additional amount to deter non-compliance.” Id. (citing Shandong Huarong Gen.

Group Corp. v. United States, 2007 Ct. Int’l Trade LEXIS 3 (CIT 2007)). In addition, Sidenor 

asserts that “the principles underlying” the 1:1 ratio for punitive damages established in Exxon 

Shipping Co. v. Baker, 128 S. Ct. 2605, 171 L. Ed. 2d 570 (2008), “should have guided 

[Commerce] in its examination of the calculated AFA rate.” Plaintiff’s Motion at 37. 

Like the argument profferred in Section IV.C.1 above with respect to relevance, these 

arguments have been addressed and rejected by the court on numerous occasions. See, e.g., 

KYD, 2009 Ct. Int’l Trade LEXIS 15 at *27-28; PAM, S.p.A. v. United States, 577 F. Supp. 2d 

1318, 1321 (CIT 2008). The court has already determined that Shandong does not provide a 

numerical limit and that Commerce “is unfettered by absolute numerical limitations” when 

selecting an AFA rate. Universal Polybag Co. v. United States, 577 F. Supp. 2d 1284, 1301 (CIT 

2008). The Federal Circuit has unequivocally stated that “[n]othing in Exxon Shipping, a case 

with a very different fact pattern and legal issues, requires us to impose new limits on the 

discretion Congress granted to the Department of Commerce.” PAM, S.p.A., 2009 U.S. App. 

LEXIS 21118 at *11. 
20

V 

CONCLUSION 

For the above stated reasons, Plaintiff’s Motion for Judgment on the Agency Record 

Submitted Pursuant to Rule 56.2 of the Rules of the U.S. Court of International Trade is 

DENIED and Commerce’s determination in Stainless Steel Bar from Spain: Final Results of 

Antidumping Duty Administrative Review, 72 Fed. Reg. 42,395 (August 2, 2007) is 

AFFIRMED. 

__/s/ Evan J. Wallach____ 

 Evan J. Wallach, Judge 

Dated: October 30, 2009 

 New York, New York