66 FR 50401, October 3, 2001 A-823-811 Investigation 4/1/00-9/30/00 Proprietary Document: PUBLIC VERSION DAS III: LME September 21, 2001 MEMORANDUM TO: Faryar Shirzad Assistant Secretary for Import Administration FROM: Joseph A. Spetrini Deputy Assistant Secretary AD/CVD Enforcement Group III SUBJECT: Issues and Decision Memorandum for the Antidumping Duty Investigation of Certain Hot-Rolled Carbon Steel Flat Products from Ukraine Summary: We have analyzed the comments and briefs of interested parties in the antidumping duty investigation of certain hot-rolled carbon steel flat products ("hot-rolled steel") from Ukraine. As a result of our analysis, for purposes of this final determination, we continue to apply total adverse facts available to all producers/exporters of hot-rolled steel in Ukraine, as authorized under section 776 of the Tariff Act of 1930, as amended ("the Act"). Consistent with our preliminary determination, we are using the highest price to normal value margin calculated in the petition, as adjusted by the Department, 90.33%. See Notice of Preliminary Determination of Sales at Less Than Fair Value: Certain Hot-Rolled Carbon Steel Flat Products from Ukraine, 66 FR 22152 (May 3, 2001) ("Preliminary Determination") and Memorandum to Edward C. Yang, Facts Available Corroboration Memorandum, Final Determination of Hot-Rolled Carbon Steel Flat Products from Ukraine, September 21, 2001 ("Final FA/Corroboration Memorandum"). A detailed discussion of this determination can be found in our Final FA/Corroboration Memorandum. We recommend that you approve the positions we have developed in the "Discussion of the Issues" sections of this Issues and Decision Memorandum. The following is the complete list of the issues raised in the case briefs and rebuttal briefs: I. Facts Available Comment 1: Factors of Production/Calculation Methodology and Format Comment 2: Product Codes Comment 3: Reporting of Sales Comment 4: Correspondence between Midland Resources' and Zaporizhstal's Datafiles II. Rejection of Certain Submissions as Untimely Filed Comment 5: Rejection of Zaporizhstal's Submissions of June 28, June 29, and July 6, 2001 Discussion of the Issues: I. Facts Available Comment 1: Factors of Production/Calculation Methodology and Format Zaporizhstal argues that its submission of May 18, 2001, contained complete and documented factors of production ("FOP") information. According to Zaporizhstal, the methodology contained in that submission used "estimated variations" to Zaporizhstal's standard costs, pursuant to the Department's own suggestions. Therefore, Zaporizhstal argues, all of the Department's supplemental questions have been answered. Zaporizhstal disagrees with the Department's statements that the company failed to report its sales and FOP data according to the Department's requirements. See Preliminary Determination, Preliminary FA/Corroboration Memorandum, and Letter from Edward C. Yang to Mr. Bruce Aitkin, dated July 31, 2001. Zaporizhstal argues that the Department, in its July 31, 2001 letter, "appears" to have ignored Zaporizhstal's May 18, 2001 submission. Further, the company asserts that the Department improperly ignored the subsequent June 28, June 29, and July 6 submissions, which "provided clarifying commentary on record information." Zaporizhstal reiterates that its May 18, 2001, submission contains a revised FOP datafile and an accompanying explanation of the methodology employed to revise the datafile, in accordance with the Department's suggestion. Zaporizhstal also cites to certain of its responses and "multiple worksheets" that it included in its April 4 and May 18, 2001 submissions. Petitioners (1) assert that Zaporizhstal's revised data is unusable for purposes of calculating a dumping margin. They state that the revised FOP data submitted on May 18, 2001, is "incomplete as to the FOP and fails to [ * * * ]." See Petitioners' rebuttal brief at 3, dated August 15, 2001. They maintain that the coefficient system Zaporizhstal developed to estimate the differences in its FOP data should not be used as the company itself admits that the data is not verifiable. Further, they state that Zaporizhstal's answers to the Department's questions were either unresponsive or incomplete. Department Position: We disagree with Zaporizhstal that its May 18, 2001, submission contained complete and documented FOP information. As described in detail in the Department's Final FA/Corroboration Memorandum, Zaporizhstal's FOP datafile is significantly flawed and unusable. Despite the Department's repeated requests, (2) Zaporizhstal failed to provide adequate information regarding the calculation methodology used to determine the usage amounts for its FOP. For a detailed description of Zaporizhstal's responses to the Department's supplemental questionnaires and the reasons why they were unusable for purposes of our final determination, see Final FA/Corroboration Memorandum at 4-10. The "multiple worksheets" Zaporizhstal refers to in its case brief do not contain sufficient relevant data to be usable in the Department's calculation. These worksheets fail to meaningfully describe the method Zaporizhstal used to calculate its reported usage amounts. Zaporizhstal references in its case brief responses 23 and 28, included in the company's May 18, 2001 submission. Questions 23 and 28, and the respective responses, however, are not specifically addressing the Department's requests for calculation worksheets demonstrating how the usage values were derived. Likewise, the worksheets, which Zaporizhstal calls "grade calculation report{s} (Blast furnaces shop)," in its April 4, 2001 submission, do not demonstrate how the company calculated the reported usage amounts for its FOP. See id. at 7. Although Zaporizhstal asserts that it answered all of the Department's questions, and cites to specific responses and worksheets, Zaporizhstal's responses to the Department's questions have been deficient, and the company repeatedly failed to satisfactorily answer the Department's questions. See Final FA/Corroboration Memorandum at 11. We also agree with petitioners that there are significant flaws in the coefficient system developed by Zaporizhstal that make this system incompatible with the Department's requirements. Although the Department allowed Zaporizhstal to submit estimates regarding variations to its standard costs, as with all calculations submitted to the Department, such estimates would have to be accompanied by adequate explanations and information regarding their source. Specifically, in accordance with the Department's practice, the source information regarding a company's response must reflect that company's actual production experience and must be linkable to documentation generated in the ordinary course of business. As instructed in our questionnaire, we require information regarding any source documents maintained in the normal course of business that are relied upon in preparation of the response. See The Department's January 4, 2001 questionnaire at G-5, question 5. Zaporizhstal failed to provide sufficient support for its estimates, stating only that they are "expert estimates." For a detailed discussion of why the coefficient system developed by Zaporizhstal is not usable for the Department's purposes, see Final FA/Corroboration Memorandum at 9-10. We further note that even the company itself points out that the system "is not verifiable." See Zaporizhstal's May 18, 2001, submission at 8-10. Contrary to Zaporizhstal's claim, the Department has not ignored the company's May 18, 2001, submission. Rather, after careful consideration, we determined that the company's record data is not in compliance with the Department's requirements and thus is unusable for the purpose of calculating a dumping margin. We explain in detail the deficiencies of this response in the Final FA/Corroboration Memorandum at 4-10. With respect to Zaporizhstal's claim that we inappropriately rejected the company's June 28, June 29, and July 6, 2001 submissions, we disagree. As we informed Zaporizhstal on July 31, 2001, (3) these submissions were rejected by the Department and returned to the company in toto as untimely filed questionnaire responses. We discuss this issue further in our response to comment 5. Comment 2: Product Codes Zaporizhstal asserts that it revised its product codes to comport to the Department's requirements "prior to" May 18, 2001. The company references certain responses and fields in its May 18, 2001 response, saying that they sufficiently explain the product codes. In rebuttal, petitioners cite directly to Zaporizhstal's May 18, 2001 response and state that Zaporizhstal failed to provide the requested explanation as to why it had reported [ * * * ] in their section A response but had reported [ * * * ] in the section C response. Department Position: We disagree with Zaporizhstal that its product codes have been revised to comport to the Department's requirements. Based on our analysis of Zaporizhstal's trading companies' (i.e., Midland Industries' and Midland Resources') sales datafiles, we have found numerous inconsistencies in their allegedly unique product codes. Our detailed explanation of Zaporizhstal's product codes and their inconsistencies with the format required by the Department can be found in the Final FA/Corroboration Memorandum at 5-7. As we have explained in our Final FA/Corroboration Memorandum, despite the Department's explicit instructions to Zaporizhstal to revise its datafiles in accordance with the Department's model match requirements, (4) Midland Industries and Midland Resources reported identical characteristics for different CONNUMS. For example, Midland Resources reports two different CONNUMs [ * * * ] for sales observations 3 and 4, respectively, which have identical product characteristics. Similarly, Midland Industries' sales observation 2 lists three different CONNUMS [ * * * ], all of which have the same product characteristics reported. Thus, for these sales, the Department is unable to determine the appropriate comparison normal value to which these reported sales should be compared. See Final FA/Corroboration Memorandum at 5-7. Zaporizhstal refers in its case brief to responses 2 and 3 and "fields 1.01 - 1.05, 2.0, 2.3, 3.5, 3.6, and 3.7 of the related computer disc" in its May 18, 2001, submission in support of its claim that its product codes were revised to comport with the Department's requirements. However, the referenced fields apply only to the database of Zaporizhstals' sales to Midland Industries and Midland Resources, not to Midland Industries' and Midland Resource's sales datafiles, which, as established in the Preliminary Determination at 22155, are the appropriate U.S. sales datafiles for the purposes of our margin calculation. The fields and responses to which Zaporizhstal refers are therefore unusable because, as detailed in the Final FA/Corroboration Memorandum at 6-7, we are unable to accurately link Zaporizhstal's datafiles to Midland Industries's and Midland Resources' datafiles. See id. at 6. Comment 3: Reporting of Sales Zaporizhstal next argues that the Department improperly, and for the first time, alleged in its July 31, 2001, letter that the company failed to report significant volumes of its subject sales. The company states that this allegation is "ridiculous and raises questions" as to the "attention paid to Zaporizhstal's thousands of pages of submissions in this investigation." Zaporizhstal maintains that it has reported all sales that "could have possibly been considered POI sales." The company further asserts that its initial responses demonstrate only that Zaporizhstal initially over-reported its sales because "it was uncertain which date the Department would consider to be the date of sale." The company maintains that, in subsequent submissions, Zaporizhstal explained and clarified this issue and reduced the number of its reported sales. The company further specifies that all of Midland Resources' sales are clearly reported in its May 18, 2001, submission. Petitioners argue that, although Zaporizhstal claims that all sales of subject merchandise have been reported, the sales datafiles have consistently been unusable because they did not report [ * * * ]. Petitioners further assert that this problem continues to persist with respect to Midland Industries' and Midland Resources' data. Department Position: We disagree with Zaporizhstal that the reported sales data is usable for our calculation purposes. As noted in our Final FA/Corroboration Memorandum, record data indicates that not all subject sales were reported in Midland Industries' and Midland Resources' sales databases. Although Midland Industries and Midland Resources each submitted a sample invoice and bill of lading (5) for their respective sales of [ * * * ], which they represented to be subject merchandise during the POI, our analysis of these documents revealed that the quantities listed on these invoices do not correlate with the information presented in each companies' respective sales datafiles. See Final FA/Corroboration Memorandum at 4. In this regard, we note that Zaporizhstal's argument that Zaporizhstal reported all sales that "could have possibly been considered POI sales," is inapposite. Specifically, the Department has not found that Zaporizhstal failed to report substantial U.S. sales. Rather, the omissions indicated by the record are with respect to sales reporting by Midland Resources and Midland Industries. However, Zaporizhstal is affiliated with these trading companies. Therefore, it is the proper and complete reporting of U.S. sales reported by Midland Resources and Midland Industries that is of concern to the Department, because the POI sales of Zaporizhstal's subject merchandise made by these two trading companies are the sales which would have been used by the Department in determining whether there were sales at less than fair value. Given such an incomplete record, the Department is unable to conduct a proper dumping analysis. Moreover, the discovery by the Department of these unidentified U.S. sales raises the question of the possible existence of further unreported U.S. sales of subject merchandise. Finally, as discussed in comment 2, above, Midland Resources' sales datafile contains numerous inconsistencies in its allegedly unique product codes, which cannot be linked to Zaporizhstal's FOP datafile. See Final FA/Corroboration Memorandum at 6. Thus, we are unable to accurately calculate a dumping margin based upon record data. See also our response to comment 4, below, for further discussion of this issue. Comment 4: Correspondence between Midland Industries', Midland Resources', and Zaporizhstal's Datafiles Zaporizhstal maintains that its May 18, 2001, submission makes it possible to connect Midland Industries' and Midland Resources' sales datafiles to Zaporizhstal's FOP datafile. The company argues that the SAS printout it submitted as a supplemental submission illustrates that it is possible, based on record data, to calculate an estimated margin that is "at significant variance with, and below" the margin applied in the preliminary determination. As further support for its claim that the necessary datafiles can be linked, Zaporizhstal specifically refers to the following components of its May 18, 2001, submission: response number 2 and the related computer disc, response number 14, and exhibits 3 - 4 (including worksheets). Zaporizhstal also argues that the Department, in its letter of July 31, 2001, mischaracterized the meetings that it held with Zaporizhstal's representative. Specifically, Zaporizhstal states that the meetings were "merely for the purpose of identifying any problems the Department may have had in understanding the revised data submitted" on May 18, 2001, and that "the meetings are irrelevant, as the record speaks for itself." Petitioners maintain that it is not possible to link Midland Industries' and Midland Resources' sales datafiles to Zaporizhstal's FOP datafile because [ * * * ]. They state that, despite the Department's instructions, the CONNUMs reported in Midland Industries and Midland Resource's sales datafiles do not correspond to the CONNUMs reported in Zaporizhstal's FOP datafile. Petitioners maintain that if the Department does not know the FOP for the CONNUMs reported in the sales datafiles, the cost of the U.S. sales cannot be determined, thus making it impossible for the Department to calculate a dumping margin. Petitioners cite to Steel Authority of India Ltd. v. United States, Slip Op. 2001-60 at 11 (CIT May 22, 2001), in which the court held that "{I}n order to make a reliable antidumping determination, the Department needs the respondent's data on U.S. sales, home market sales, cost of production, and constructed value." (6) With regard to Zaporizhstal's claim that it is possible to calculate a margin based on record data, petitioners maintain that the Department properly made its facts available decision in its Preliminary Determination, and "whether or not it could develop a different margin is irrelevant." Additionally, petitioners assert that, as the Department has determined that Zaporizhstal's data is incomplete, it cannot be relied upon in the margin calculation. Department Position We disagree with Zaporizhstal. Neither Midland Industries nor Midland Resources complied with the Department's explicit requests that the CONNUMS reported in the sales datafiles match those reported in Zaporizhstal's section D response. See Department's March 14, 2001, questionnaire at 2 and 7, questions 6.b and 22, respectively. Therefore, the Department is unable to determine the appropriate normal value to which Midland Industries' and Midland Resources' reported sales should be compared. The Department explored the possibility of linking the Midland datafiles with Zaporizhstal's sales datafile in an attempt to determine whether there is sufficient information on the record to construct a usable U.S. sales datafile. (7) However, the record does not contain sufficient information which would allow the Department to construct a usable U.S. sales datafile. Additionally, Midland Industries' May 21, 2001, sales datafile includes multiple CONNUMs for individual sales transactions. This makes it impossible to compare the individual sales to normal value, as, for example, it is not indicated anywhere in the response what portion of the total quantity reported for each sales transaction should apply to each CONNUM associated with that sales transaction. For the above reasons, which are explained in more detail in the Department's Final FA/Corroboration Memorandum, it is impossible to accurately link Midland Industries' and Midland Resources' sales datafiles to Zaporizhstal's sales datafile. Although Zaporizhstal claims that it is possible to calculate a dumping margin based on record data, we note that even Zaporizhstal admits that the margin calculation for which it submitted a SAS printout is merely an "estimated margin" based upon "selected U.S. sales." This sample calculation, therefore, fails to demonstrate that it is possible to calculate an accurate margin, in accordance with Department practice, based upon all of the POI sales transactions reported by the company. Moreover, the information used to calculate the sales information is not what was reported in the May 18, 2001, sales datafiles. Specifically, the CONNUMs applied in the sales SAS printout are not [ * * * ] in Midland Industries' or Midland Resources' most current respective datafiles, and there is no record evidence which supports the link that Zaporizhstal has proffered in the SAS printout attached to its case briefs. Finally, we disagree with Zaporizhstal's claim that the purpose of the meetings conducted on June 28 and July 2, 2001, was merely to enhance the Department's "understanding" of Zaporizhstal's own deficient data. Such understanding is only possible where the information submitted on the record is complete, clear and consistent. In this case, in addition to numerous deficiency questionnaires sent out during this investigation, the Department sought clarification of Zaporizhstal's response through the June 28 and July 2, 2001 meetings with counsel for Zaporizhstal. These meetings provided Zaporizhstal two additional opportunities to clarify the record information. However, as acknowledged by Zaporizhstal's counsel, and as the petitioners correctly point out, Zaporizhstal failed to create an adequate record based on which the Department could properly calculate the dumping margin. See Ta Chen Stainless Pipe, Ltd. v United States, 4F. Supp. 2d.1221, 1246 (CIT 1998). II. Rejection of Untimely Submissions Comment 5: The Department's Rejection of June 28, June 29, and July 6, 2001, Submissions Zaporizhstal argues that the Department's rejection of the company's submissions of June 28, June 29, and July 6, 2001, was not in accordance with the World Trade Organization's ("WTO's") decision in United States - Antidumping Measures on Certain Hot-Rolled Steel Products from Japan (AB- 2001-2. WT/DS184/AB/R (July 24, 2001) ("Hot-Rolled Steel from Japan"). According to Zaporizhstal, this panel decision specifically stated that submissions should not be rejected solely based upon the fact that the deadline had expired, assuming that those submissions were otherwise filed within a "reasonable period of time." Zaporizhstal asserts that the submissions rejected by the Department were meant to "clarify" the record information and, as such, they should have been accepted. The company further asserts that, even if the submissions had contained late-filed new information, the submissions should have been allowed to remain on the record in accordance with Hot-rolled Steel from Japan. In rebuttal, petitioners argue that the Department's decision to reject Zaporizhstal's submissions was in fact consistent with the WTO's decision in Hot-rolled Steel from Japan. They state that Zaporizhstal failed to address the panel's analysis regarding its decision that submissions should not be rejected if they are submitted "within a reasonable period of time." According to petitioners, these submissions were filed almost a month and a half after the applicable time limit, and Zaporizhstal did not ask for another extension of time. It is thus unlikely, petitioners argue, that a "like-minded" WTO panel would find in the instant case that the rejected submissions were filed within a reasonable period of time, especially where Zaporizhstal provided the three submissions at issue without prior request for extension. Petitioners conclude that the Department's acceptance of the submissions would have compromised "the ability of the investigating authorities to conduct the investigation expeditiously," the importance of which was recognized by the WTO's panel decision in Hot-rolled Steel from Japan. Citing various court decisions (8), petitioners next assert that the courts have long approved the Department's right to enforce time limits. They also refer to paragraph 86 of the panel decision which states that "Article 6.8 and paragraph 1 of Annex II are not a license for interested parties simply to disregard the time-limits fixed by investigating authorities." Petitioners maintain that the Department's action was in accordance with "the Antidumping Agreement, particularly Articles 6.1.1 and 6.8 and paragraphs 1 and 3 of Annex II." Petitioners conclude that, in order to conduct an orderly and expeditious investigation, the Department must have the authority to enforce time limits for submitting factual information. Department Position: We disagree with Zaporizhstal that our rejection of the company's submissions of June 28, June 29, and July 6, 2001, was inappropriate. According to 19 C.F.R. 351.301(c)(2), when requesting information pursuant to a questionnaire, the Department must specify the deadlines by which time the information is to be provided by the parties. Moreover, 19 C.F.R. 351.104(a)(2)(iii) specifically states that, in no case will the administrative record include any document that the Department returns to the submitter "as untimely filed, or any unsolicited questionnaire response." In this case, as we have discussed in the Final FA/Corroboration Memorandum at 11, in addition to the original dumping questionnaire, we have issued to Zaporizhstal numerous supplemental questionnaires to give the company ample opportunity to remedy its deficiencies, and to clarify various issues and inconsistencies in its submissions. In fact, the Department granted Zaporizhstal a total of three extensions to the supplemental response deadlines - one for one additional week, one for three additional days, and another for two additional weeks. We also note that, at no time past the May 18, 2001 deadline, did Zaporizhstal ask for yet another extension to respond to the supplemental questionnaires. Nor did Zaporizhstal offer any explanation as to why it was unable to comply with the deadlines established. See id. The establishment of deadlines for submission of factual information in an antidumping investigation are not arbitrary. Rather, deadlines are specifically designed to allow a respondent sufficient time to prepare responses to detailed requests for information, and to allow the Department to analyze and verify that information, within the statutorily- mandated timeframe for completing the investigation. The Department recognizes that respondents may encounter difficulties in meeting certain deadlines in the course of any investigation; indeed, the Department has established a specific regulation which governs requests for extensions of specific time limits (i.e., 19 CFR 351.302(c)). In this case, as noted above, Zaporizhstal in fact requested, and was granted in each instance, three extensions for responses to the Department's requests for information. Moreover, the Department accepted additional factual information from Zaporizhstal which was submitted on May 21, 2001, three days after the deadline established by the Department for submitting a response to a supplemental questionnaire. The Department allowed this information on the record because we did not believe it to be unreasonable to consider in light of the deadline for completing the investigation. However, the submissions date June 28, June 29, and July 6, in contrast, were simply filed too late to allow for the Department's consideration in making a final determination in this investigation. Zaporizhstal gave no indication that it considered the record to be incomplete. The Department, accordingly, proceeded to analyze the record information submitted up to May 21, 2001 (which, as discussed in comments 1, 2, and 3 above, is grossly deficient and incomplete), under the assumption that Zaporizhstal itself believed that it had provided complete information. However, the June 28, 2001 submission revealed that Zaporizhstal believed that further information was necessary. The June 28 submission was then followed by two more submissions, the latter of which was filed on July 6, 2001. It is important to stress that the July 6, 2001 submission was thus submitted 49 days after the deadline for responding to the Department's supplemental questionnaires of April 19 and May 4, 2001, and 74 days after the preliminary determination. Thus, given the statutory deadline in this investigation, it would not have been reasonable for the Department to accept this information. Specifically, in order to accept this late information, the Department would have needed sufficient time to analyze the information; schedule and conduct a verification of that information (if appropriate), prepare a verification report, allow sufficient time for parties to submit case and rebuttal briefs, conduct a hearing (if requested), and prepare a final determination. Because the necessary time was not available, the Department's ability to complete this investigation by the established deadline for this investigation would have been seriously jeopardized had the Department accepted this information. Accordingly, given that Zaporizhstal's filings of June 28, June 29, and July 6, 2001, were received well past the extended deadline of May 18, 2001, they were properly returned to the company as untimely filed questionnaire responses, pursuant to 19 C.F.R. 104(a)(2)(iii). Furthermore, the Department's decision to reject the submissions at issue is consistent with the general practice of returning untimely filed questionnaire responses, particularly where parties submit the information over one month past the final deadline, after being given numerous opportunities to provide the necessary data earlier in the investigation. The Department establishes appropriate deadlines to ensure that its ability to complete the investigation is not jeopardized. We note that the Court of International Trade has long recognized the need to establish - and enforce - time limits for filing questionnaire responses, the purpose of which is to aid the Department in the administration of the dumping laws. See e.g. Nippon Steel Corp. v. United States, 118 F. Supp. 2d 1366, 1377 (CIT 2000); and Seattle Marine Fishing Supply, et al. v. United States, 679 F. Supp. 1119, 1128 (CIT 1998) (it was not unreasonable for the Department to refuse to accept untimely filed responses, where "the record displays the ITA followed statutory procedure" and the respondent "was afforded its chance to respond to the questionnaires, which it failed to do." This is because the Department "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"). See Gulf State Tube Division of Quanex Corp. v. United States 981 F. Supp. 630, 653 (1997). In this case, contrary to Zaporizhstal's claim, accepting the company's last three submissions would not amount to mere "clarification" of the data; rather, it would be a replacement of the data originally provided in the May 18, 2001 response, which would necessitate additional analysis. Thus, given the time constraints, it would be unreasonable to expect the Department to accept and consider this information at such a late date. As discussed above, our decision to reject Zaporizhstal's responses of June 28, June 29, and July 6, 2001, is fully consistent with U.S. law in circumstances in which it was not reasonable to extend the applicable deadline. As a consequence, while we believe that our determination is fully consistent with the WTO's panel decision in Hot-rolled Steel from Japan, we need not address specifically the WTO issues raised by Zaporizhstal, given that U.S. law mandates the Department's enforcement of its deadlines for submission of questionnaire responses. See Federal Mogul Corp. v. United States, 63 F.3d 1572, 1581 (Fed. Cir. 1995), citing Suramerica DeAleaciones Laminadas v. United States, 966 F.2d 660, 668 (Fed. Cir. 1992)("Suramerica"); Footwear Distributors and Retailers, et al. v. United States, 852 F. Supp. 1078, 1088 (CIT 1994). RECOMMENDATION Based on our analysis of the comments received, we recommend adopting all of the above Department positions. If accepted, we will publish the final determination of the investigation and the final weighted-average dumping margin for the investigated firm in the Federal Register. AGREE_____________ DISAGREE____________ ______________________________________________ Faryar Shirzad Assistant Secretary for Import Administration _______________________________________________ Date ______________________________________________________________________ footnotes: 1. The rebuttal brief discussed in this memo was submitted on behalf of Gallatin Steel Company, IPSCO Steel Inc., Nucor Corporation, Steel Dynamics, Inc., Weirton Steel Corporation, and the Independent Steelworkers Union (hereinafter "petitioners"). 2. See Department's March 14, 2001 questionnaire, at 13, question 47.b. and Department's April 19, 2001 questionnaire, at 4, question 19. 3. See Letter from Edward Yang to Mr. Bruce Aitken, dated July 31, 2001. 4. See Department's March 14, 2001 questionnaire at 2 and 7, questions 6.b and 22, respectively. 5. See Zaporizhstal's May 21, 2001 response. 6. Petitioners point out that, given that Ukraine is a non-market economy, Zaporizhstal is only required to provide information on its U.S. sales and FOP. Petitioners cite to Ta Chen Stainless Pipe Ltd. v. United States, Slip Op. 99-117 at 45 (CIT 1999) and Borden, Inc. v. United States, 4 F. Supp. 2d 1221, 1246 (CIT 1998), which held that "respondents still have the burden of creating an adequate record," and when the Department does not have a reliable normal value datafile, it may "resort to total facts available." 7. Zaporizhstal reported its sales to Midland Industries and Midland Resources in its May 18, 2001, section C response. Because Zaporizhstal's datafile does not contain the same defect of including multiple values in certain data fields, we sought to determine whether usable information from Zaporizhstal's datafile could be linked to Midland Industries' and Midland Resources' defective sales listings. 8. See Nippon Steel Corp. v. United States, 118 F. Supp. 2d. 1366, 1377 (Ct. Int'l Trade 2000) citing Seattle Marine Fishing Co. v. United States, 12 CIT 60, 71, 679 F. Supp. 1119, 1128 (1988) (refusal to accept untimely filed responses not unreasonable or contrary to law.) ("Nippon Steel Corp. v. United States"); See Gulf States Tube Division of Quanex Corp. v. United States,