TA CHEN STAINLESS STEEL PIPE, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee, 298 F.3d 1330

LINN, Circuit Judge. Ta Chen Stainless Steel Pipe, Ltd. (“Ta Chen”) appeals a judgment of the United States Court of International Trade affirming a United States Department of Commerce (“Commerce”) remand determination applying partial adverse facts available to certain Ta Chen sales of welded stainless steel pipe (“steel pipe”) and setting the import duty at the highest available dumping margin. Ta Chen Stainless Steel Pipe, Inc. v. United States, No. 97-08-01344, 2000 WL 1225799 (CIT Aug. 25, 2000) (“Ta Chen II”).

Because Commerce’s decision is supported by substantial evidence and is otherwise in accordance with the law, we affirm. BACKGROUND Ta Chen is a Taiwanese producer and exporter of steel pipe. Through August 1994, Ta Chen sold steel pipe through a U.S. distributor, Sun Stainless, Inc. (“Sun”). From September 1993 to July 1995, Sun was owned by Frank McClane, a former minority shareholder of Ta Chen, and managed by Ken Mayes, a former consultant to Ta Chen. Ta Chen had custody of Sun’s signature stamp as well as unlimited access to Sun’s accounts receivable, accounts payable, and inventory and pricing information.

Ta Chen also participated in negotiations of Sun’s sales of steel pipe. Ta Chen, however, had no equity ownership in Sun. On July 3, 1995, McClane sold 80% of Sun’s stock to Picol International (“Picol”), a foreign corporation, and the remaining 20% to Mr. Masa-ru Kimura, thereby fully divesting himself of ownership. In 1992, certain U.S. producers of steel pipe (“petitioners”) filed an antidumping petition with Commerce alleging that steel pipe imported from Taiwan was being sold domestically at a lower price than it was being sold under similar conditions in Taiwan.

On January 18, 1994, Commerce initiated an administrative review of certain steel pipe imported from Taiwan covering a period from 1992 to 1993. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 59 Fed. Reg. 2593 (Dep’t Commerce Jan. 18, 1994). On January 13,1995, Commerce initiated a second review covering a period from 1993 to 1994. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 60 Fed.Reg. 3192 (Dep’t Commerce Jan. 13,1995). On February 1, 1996, Commerce initiated a third review covering a period from December 1, 1994, through November 30, 1995.

Initiation of Anti-dumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 61 Fed.Reg. 3670 (Dep’t Commerce Feb. 1, 1996). The three reviews were conducted concurrently, and preliminary determinations for all three were published during the first half of 1997.

See Certain Welded Stainless Steel Pipe from Taiwan; Preliminary Results of Antidumping Duty Administra tive Reviews, 62 Fed.Reg. 26,776 (Dep’t Commerce May 15, 1997) (“Combined First and Second Review Preliminary Results ”); Certain Welded Stainless Steel Pipe from Taiwan; Preliminary Results of Administrative Review, 62 Fed.Reg. 1435 (Dep’t Commerce Jan. 10, 1997) {“Third Revieiv Preliminary Results”). The third review is the subject of this appeal.

During the first review, petitioners called Commerce’s attention to Ta Chen’s potential affiliation with Sun and certain other parties under the then existing Tariff Act. See Certain Welded Stainless Steel Pipe from Taiwan; Final Results of Administrative Review, 64 Fed.Reg. 33,243, 33,244 (Dep’t Commerce June 22, 1999) (“First and Second Review Final Results ”); 19 U.S.C. § 1677(13) (1988). At that time, Ta Chen denied the allegations of affiliation and provided no information concerning its relationship with Sun.

Ta Chen later argued before Commerce that it was not affiliated with Sun during the period of review because under the law at the time, foreign exporters were “affiliated” with their U.S. customers only if the exporter owned at least 5% of the customer. First and Second Review Final Results, 64 Fed.Reg. at 33244-45; see also 19 U.S.C. § 1677(13) (1988) (repealed by Pub.L. No. 103-465, Title II § 222(i)(2), Dec. 8, 1994, 108 Stat. 4876).

Petitioners renewed their allegations in a submission filed with Commerce on July 12, 1995, and presented additional information regarding Ta Chen’s potential affiliation with Sun. First and Second Review Final Results, 64 Fed.Reg. at 33,244-45. Ta Chen again denied the allegations. Id. Effective January 1, 1995, Congress modified U.S. trade law and broadened the definition of “affiliated persons.” See Uruguay Round Agreements Act (“URAA”), Pub.L. No. 103M65, 108 Stat. 4809 (1994); compare 19 U.S.C. § 1677(33) (2000), with 19 U.S.C. § 1677(13) (1988).

Under the new definition, if an exporter has operational control over its U.S. customer, the exporter is affiliated regardless of ownership. See 19 U.S.C. § 1677(33). The third antidumping review of Ta Chen was initiated under this broadened standard. As part of the third review, Commerce issued a general questionnaire to Ta Chen concerning affiliated importers, giving Ta Chen notice of the broader definition of affiliated parties. Ta Chen’s response to the questionnaire, however, did not include information about Sun. First and Second Review Final Results, 64 Fed.Reg. at 33,-244.

Commerce then issued a supplemental questionnaire to Ta Chen specifically requesting information regarding its affiliation with Sun. In response, Ta Chen provided some of the requested information Sun’s 1995 financial statement, for example but did not provide any information regarding sales data. Id.; Third Revieiv Preliminary Results, 62 Fed.Reg. at 1436. In reviewing the information provided, Commerce determined that Ta Chen was affiliated with Sun during the third review period.

Certain Welded Stainless Steel Pipe from Taiwan; Final Results of Administrative Review, 62 Fed.Reg. 37,543, 37,544 (Dep’t Commerce July 14, 1997) (“Third Review Final Results ”); see also First and Second Review Final Results, 64 Fed.Reg. at 33,244. Commerce further determined that Ta Chen had failed to act to the best of its ability to provide information on Sun’s U.S. sales and consequently would be subject to the highest dumping margin from the facts otherwise available. Third Review Final Results, 62 Fed.Reg. at 37,544. Ta Chen appealed to the Court of International Trade.

Ta Chen Stainless Steel Pipe, Ltd. v. United States, 23 C.I.T. 804 (Ct. Int’l Trade 1999) (“Ta Chen /”). The court affirmed the determination that Ta Chen and Sun were affiliated but reversed and remanded the determination to apply adverse facts available. Id. at 818, 821. The court found that Commerce violated 19 U.S.C. § 1677m(

d) by not providing adequate notice to Ta Chen that it was required to furnish Sun’s U.S. sales data. Id. at 821. The court remanded for further review by Commerce after Ta Chen had been given an adequate opportunity to provide Sun’s sales data. Id. During the remand review, Commerce issued another questionnaire seeking Sun’s sales data. Ta Chen forwarded the questionnaire to Sun, asked Sun to complete it, and offered “any and all assistance” in answering it.

On November 25, 1999, Sun’s counsel notified Ta Chen that Sun would not cooperate with the Commerce inquiry because it had been closed since 1996 and had no operations in the United States, making a response too burdensome and costly. Sun’s counsel stated, however, that he would urge Sun to reconsider. After Ta Chen successfully sought two extensions of time to submit the requested information to Commerce, Sun’s counsel notified Ta Chen that Sun still would not cooperate with the request.

The following day Ta Chen informed Commerce that further attempts to retrieve the Sun data would be “futile.” Upon remand, Commerce found that “Ta Chen has withheld or failed to provide the information requested regarding Sun’s U.S. sales despite repeated notification of the deficiency....” Certain Welded Stainless Steel Pipe from Taman, Final Results of Redetermination Pursuant to Court Remand, No. 97-08-01344, slip op. 99-117 at 3 (Dep’t Commerce Feb. 25, 2000) (“Remand Results ”).

Commerce further found that Ta Chen “failed to act to the best of its ability in responding to the Department’s request for information regarding Sun’s U.S. sales.” Id., slip op. at 3-4. Without the requested sales data and pursuant to 19 U.S.C. § 1677e(b), Commerce applied facts otherwise available and used an adverse inference to apply the highest available dumping margin. Id., slip op. at 4. Commerce calculated that margin at 30.95%. Id., slip op. at 13. On appeal, the Court of International Trade affirmed the Commerce remand determination.

The court found substantial evidence that Ta Chen had not complied to the best of its ability with Commerce’s request for information on Sun’s sales. Ta Chen II, slip op. at 13. The court noted that while Ta Chen may have had reason to argue it was not affiliated with Sun under the changing

definitions of “affiliated party,” it was nevertheless on notice as early as July 1994 that its relationship with Sun was at issue and that Sun’s sales might be later construed as constructed export price sales. Id., slip op. at 9-10. The court, therefore, found that Ta Chen “could have, and should have, preserved its information on Sun’s sales in order to provide full information for the Department.” Id., slip op. at 10.

The court also affirmed Commerce’s application of a 30.95% dumping margin, noting that the adverse facts available involved a price and quantity neither unusually high nor unusually low and drawn from sales of a normal product. Id., slip op. at 19. The court then concluded that the rate chosen by Commerce was not aberrant, as Ta Chen contended, but rather was indicative of Ta Chen’s sales. Id., slip op. at 22. The court added that “the methodology chosen by Commerce was the only way to apply an adverse inference in this case, while still using [Ta Chen’s] own information.” Id., slip op. at 22.

On appeal to this court, Ta Chen challenges both (1) the decision by Commerce to impose partial adverse facts available on Ta Chen and (2) the selection of 30.95% as the dumping margin. The government argues that the court properly sustained Commerce’s application of partial adverse facts available based on Ta Chen’s failure to cooperate to the best of its ability. The government further argues that the 30.95% dumping margin is both supported by substantial evidence and otherwise in accordance with the law. This court has jurisdiction under 28 U.S.C. § 1295(a)(5). DISCUSSION A.

STANDARD OF REVIEW We review a decision of the Court of International Trade evaluating an antidumping determination by Commerce by reapplying the statutory standard of review that the Court of International Trade applied in reviewing the administrative record. Mitsubishi Heavy Indus., Ltd. v. United States, 275 F.3d 1056, 1060 (Fed.Cir.2001). Commerce’s special expertise in administering the anti-dumping law entitles its decisions to deference from the courts. See, e.g., Micron Tech., Inc. v. United States, 117 F.3d 1386, 1394 (Fed.Cir.1997); Torrington Co. v.

United States, 68 F.3d 1347, 1351 (Fed.Cir.1995); see also Chevron USA, Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We will uphold Commerce’s determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B)(i) (2000); Micron Tech., 117 F.3d at 1393. “Substantial evidence” has been defined as “more than a mere scintilla,” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v.

NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). To determine if substantial evidence exists, we review the record as a whole, including evidence that supports as well as evidence that “fairly detracts from the substantiality of the evidence.” Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed.Cir.1984). Ta Chen’s contention that the imposition of adverse facts available was an “abuse of discretion” is a misstatement of the proper standard of review.

While certain appeals from antidumping duty proceedings follow the “arbitrary, capricious, abuse of discretion” standard, this appeal reviews a final determination by Commerce under 19 U.S.C. § 1675 other than a determination reviewable under 19 U.S.C. § 1516a(a)(l). See 19 U.S.C. § 1516a(a)(2)(B)(iii) (2000). Therefore, we review the decision under the substantial evidence standard of

section 1516a(b)(l)(B)(

i) as opposed to the “arbitrary, capricious, abuse of discretion” standard of

section 1516a(b)(l)(A). B. IMPOSITION OF PARTIAL ADVERSE FACTS AVAILABLE Ta Chen argues three distinct errors in Commerce’s imposition of partial adverse facts available. First, it argues that the record does not support the factual finding that it was affiliated with Sun. Second, it contends that the Court of International Trade impermissibly affirmed Commerce’s decision on grounds not invoked by Commerce. Finally, it argues that Commerce violated 19 U.S.C. § 1677m by not notifying Ta Chen of deficiencies in its information gathering .efforts before imposing partial adverse facts available.

The government responds by arguing that the Court of International Trade properly affirmed Commerce’s decision because Commerce’s decision to impose partial adverse facts available is supported by substantial evidence of record. The government also contends that the Court of International Trade did not affirm Commerce’s decision on alternative grounds, but decided the case on the same grounds invoked by the agency. Finally, the government argues that Commerce complied with 19 U.S.C. § 1677m because Commerce was not required to notify Ta Chen that its complete failure to respond was deemed non-responsive. 1.

Ta Chen’s Affiliation with Sun Ta Chen argues that Commerce erroneously imposed partial adverse facts available upon Ta Chen based on “unsupported speculation” that Ta Chen was affiliated with Sun’s successor, Picol. We disagree with that characterization of Commerce’s decision. Substantial evidence supports the factual determination that Ta Chen and Sun were affiliated during the relevant period of review. “Affiliated persons” includes any group in which one person controls another.

See 19 U.S.C. § 1677(S3)(G) (2000). “[A] person shall be considered to control another person if the person is legally or operationally in a position to exercise restraint or direction over the other person.” Id. Commerce’s factual determination is supported by evidence that:

(1) Sun was owned by a former minority shareholder of Ta Chen and managed by a former Ta Chen consultant, and

(2) Ta Chen had custody of Sun’s signature stamp and full access to Sun’s accounting and pricing information. Contrary to Ta Chen’s arguments, Commerce did not impose partial adverse facts available upon Ta Chen because Ta Chen was related to Picol in 1999. Rather, Commerce did so because Ta Chen was affiliated with Sun during the period of review and then subsequently failed to act to the best of its ability to provide information on Sun’s U.S. sales. Ta Chen bore the burden of creating an' accurate record. See Zenith Elecs.

Corp. v: United States, 988 F.2d 1573, 1583 (Fed.Cir.1993) (“The burden of production [belongs] to the party in possession of the necessary information.”). Ta Chen was on notice as early as 1994 that its relationship with Sun was raised before Commerce by the' petitioners in the first review period.

While it is true that a respondent to a Commerce inquiry only has an obligation to produce data requested by Commerce, see 19 U.S.C. § 1677e(b), it is reasonable in this case for Commerce to expect Ta Chen to preserve its records in the event that Commerce itself would request them, which it actually did in October 1996. When Sun was sold without preserving the records of Sun’s sales, Ta Chen bore the risk that Commerce would request the sales data previously alleged to be evidence of dumping activity.

Thus, we will not disturb Commerce’s decision to apply partial adverse facts available on Ta Chen because of its former affiliation with Sun and its subsequent inability to procure Sun’s sales data. 2. The Basis for the Court of International Trade’s Decision Ta Chen argues that the Court of International Trade impermissibly affirmed Commerce’s decision on grounds not articulated by Commerce. We disagree.

Ta Chen notes that a “fundamental rule of administrative law [is] that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.” SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); but see; Fleshman v. West, 138 F.3d 1429, 1433 (Fed.Cir.1998) (noting that a court may affirm on a new ground if the new ground is not a determination which the agency alone is authorized to make); Killip v. Office offers.

Mgmt., 991 F.2d 1564, 1568-69 (Fed.Cir.1993) (noting that a court may affirm on a different

interpretation of a statute or regulation “when upholding the Board’s decision does not depend upon making a determination of fact not previously made by the Board”). Here, however, the Court of International Trade did not affirm Commerce’s decision on alternative grounds. In its Remand Results, Commerce explained its decision to use an adverse inference against Ta Chen as follows: [I]t has already been established that Ta Chen had operational control over Sun and had access to its sales and pricing data.

Ta Chen knew that Sun’s U.S. sales were an issue both in the administrative review and in this litigation and that there was a possibility that Ta Chen would be requested to provide those records once again.... Accordingly, Ta Chen should have taken steps to obtain and preserve the relevant records. It cannot now rely on the fact that Sun is no longer in business to justify its failure to produce the necessary documentation. Remand Results, slip op. at 4.

The Court of International Trade opinion reflects that it approved the grounds invoked by Commerce: Ta Chen does not and cannot contest the fact it had operational control of Sun. The [Court of International Trade previously] found Commerce’s affiliation finding supported by substantial evidence due to the numerous connections between Ta Chen and Sun. It is reasonable for the Department to conclude that this operational control gave Ta Chen access to Sun’s records.

This conclusion is further supported by the fact that Ta Chen was able to provide other confidential records from Sun, such as Sun’s federal income tax records. It is also reasonable for Commerce to expect Ta Chen to maintain any relevant records pending the final outcome of the administrative review. In order to comply to the best of its ability, Ta Chen should have preserved Sun’s information in the event that its sales were classified as [constructed export price sales]. Ta Chen II, slip op. at 8-9 (internal citations omitted).

Ta Chen compares one sentence in Ta Chen II to one sentence in the Remand Results for the proposition that the Court of International Trade affirmed the Commerce decision on alternative grounds. In the Remand Results, Commerce noted that “Ta Chen had notice that its relationship with Sun in particular, raised a question with the Department as to affiliation at least as early as October 1996.” Remand Results, slip op. at 9.

The Court of International Trade opinion states that “[a]s early as July 1994, Ta Chen knew its relationship with Sun was at issue because the petitioners had called it to the Department’s attention in the first administrative review.” Ta Chen II, slip op. at 9. While the different opinions cite different dates regarding when Ta Chen knew that its relationship with Sun was an issue before Commerce, the Court of International Trade’s reasoning is not inconsistent with the grounds invoked by Commerce.

Commerce found that Ta Chen was on notice “at least as early as October 1996,” while the Court of International Trade pinned the date as July 1994. Those time periods are not mutually exclusive. Moreover, reliance on Ta Chen’s notification in October 1996 the same year that Picol closed would be sufficient to uphold Commerce’s decision.

Because both Commerce and the Court of International Trade considered the notice of affiliation as just one factor in their conclusion that Ta Chen failed to act to the best of its ability to provide information on Sun’s U.S. sales, we conclude that the Court of International Trade did not deviate from its duty to review only the decision made by Commerce. 3. Commerce’s Compliance With 19 U.S.C. § 1677m Ta Chen argues that Commerce violated 19 U.S.C. § 1677m by failing “to notify Ta Chen of any deficiencies in Ta Chen’s efforts to induce Picol’s cooperation” before imposing partial adverse facts available.

We disagree with Ta Chen’s

interpretation of the statute.

The pertinent subsection, entitled “Deficient submissions,” provides in part: If the administering authority or the Commission determines that a response to a request for information under this subtitle does not comply with the request, the. administering authority or the -Commission (as the case may be) shall promptly inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person with an opportunity to remedy or explain the deficiency in light of the time limits established for the completion of investigations or reviews under this subtitle. 19 U.S.C. § 1677m(d) (2000).

The Court of International Trade in Ta Chen I remanded Commerce’s first attempt to impose adverse facts available upon Ta Chen because Commerce failed to comply with the statute by not providing adequate notice to Ta Chen that it was required to furnish Sun’s sales data. Ta Chen I, 23 C.I.T. at 821. Upon remand, Commerce issued a questionnaire to Ta Chen specifically seeking Sun’s sales data. Following issuance of the specific questionnaire and the Remand Results, the Court of International Trade in Ta Chen II found no violation of the statute. Ta Chen II, slip op. at 12-13.

We find no error in the Court of International Trade’s application of the statute to the facts in this case. After being given a specific chance to get Sun’s sales data, Ta Chen completely failed to provide Commerce the data.

Commerce granted Ta Chen two extensions of time to try to get the information, but Ta Chen’s counsel eventually informed Commerce that further efforts would be “futile.” Under such circumstances where, following an opportunity to gather more information, a party informs Commerce that it will not provide the information requested, Commerce is not required to give another formal notice that the complete failure to respond does not comply with the request. Ta Chen knew that “the nature of the deficiency” was its complete failure to respond.

The statute only applies when a “response to a request” is deemed to not comply. A failure to respond is not the same as a “response” as required by the statute. Therefore, Commerce was under no statutory duty to formally tell Ta Chen that its failure to respond was deficient. C. SELECTION OF THE 30.95% DUMPING MARGIN Ta Chen argues that the 30.95% dumping margin was unsupported by substantial evidence and otherwise not in accordance with the law for several distinct reasons. Specifically, Ta Chen contends that (1) the margin selected was aberrant and not representative, and

(2) Commerce impermissi-bly selected the high margin solely for deterrence. The government argues that Commerce properly derived the 30.95% dumping margin from Ta Chen sales during the period of review and corroborated the rate by comparing the relevant sale to Ta Chen’s other sales in terms of price, quantity and product. • 1. The Factual Basis for the Selected Dumping Margin As this court recognized in F.lli De Ceceo di Filippo Fara S. Martino S.p.A. v.

United States, 216 F.3d 1027, 1032 (Fed.Cir.2000) (“De Ceceo ”), the anti-dumping statute leaves much to agency discretion in making anti-dumping determinations. See also Smith-Corona Group v. United States, 713 F.2d 1568, 1571 (Fed. Cir.1983) (“The Secretary has broad discretion in executing the [anti-dumping] law.”). In the case of uncooperative respondents, the discretion granted by the statute appears to be particularly great, allowing Commerce to select among an enumeration of secondary sources as a basis for its adverse factual inferences. See 19 U.S.C. § 1677e(b) (2000).

In cases in which the respondent fails to provide Commerce with the most recent pricing data, it is within .Commerce’s discretion to presume that the highest prior margin reflects the current margins. See Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1190 (Fed.Cir.1990). It is undisputed that Ta Chen made a sale with a 30.95% dumping margin. Ta Chen argues that the selected sale represented only 0.04% of Ta Chen’s sales during the period of review and was thus aberrant.

Ta Chen cites De Ceceo for the proposition that Commerce may not select an aberrant dumping margin when applying adverse facts available upon a respondent. De Ceceo is distinguishable from this case. In De Ceceo, the Court of International Trade rejected Commerce’s application of a 46.67% dumping margin because that margin was “thoroughly discredited” and uncorroborated by Commerce’s own investigation. De Ceceo, 216 F.3d at 1032. Here, the 30.95% dumping margin is corroborated by actual sales data, and Ta Chen admits that it is reflective of some, albeit a small portion, of Ta Chen’s actual sales.

So long as the data is corroborated, Commerce acts within its discretion when choosing which sources and facts it will rely on to support an adverse inference. Id. 2. The Motivation Behind the Selection of the Dumping Margin Ta Chen also argues that Commerce selected the 30.95% dumping margin solely for deterrence, contrary to this court’s holding in D & L Supply Co. v. United States, 113 F.3d 1220 (Fed.Cir. 1997). In D & L Supply, a Chinese exporter of iron castings was subject to several administrative reviews of Commerce dumping orders.

The exporter cooperated with Commerce from 1987 through 1990 by answering Commerce’s antidumping questionnaires. For the 1989-90 review, Commerce calculated a 92.74% dumping margin. While Commerce was still conducting the administrative review for 1989-90, it initiated an administrative review for 1990-91. That year, the exporter did not cooperate with Commerce’s investigation. Without the actual sales data for 1990-91, Commerce selected a dumping margin using the best information available (“BIA”) rate, which was the precursor to the current “adverse inference” from “facts otherwise available” rule.

Commerce used the 1989-90 rate of 92.74%, as it was the highest antidumping duty rate from any prior administrative review. Id. at 1221-22. Upon a challenge in the Court of International Trade, the court found that the rate for the 1989-90 review was erroneous and remanded the cases for both years. Commerce then recalculated the rate for 1989-90, but nevertheless used the 92.74% rate for the 1990-91 period under the BIA rule.

Commerce argued to this court that it could use a subsequently invalidated dumping margin as the basis for calculating the BIA rate because the BIA rate is supposed to be sufficiently high to induce respondents to cooperate with Commerce’s dumping investigations. This court reversed, holding that “[flnformation that has conclusively been determined to be inaccurate does not qualify as the ‘best information’ under any test....” Id. at 1223. This court further held that Commerce could not select a rate based solely on Commerce’s interest in inducing foreign exporters to cooperate with Commerce’s investigations.

Rather, the rate must have some relationship to commercial practices in the particular industry. Id. at 1223-24. This case is distinguishable from D & L Supply. Here, unlike the exporter in D & L Supply, the dumping margin selected by Commerce was corroborated by Ta Chen’s sales data. While Commerce may have chosen the 30.95% rate with an eye toward deterrence, Commerce acts within its discretion so long as the rate chosen has a relationship to the actual sales information available. Since D & L Supply, this court recognized that Commerce may consider deterrence when selecting an adverse inference dumping margin.

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. Obviously a higher adverse margin creates a stronger deterrent, but Congress tempered deterrent value with the corroboration requirement.

It could only have done so to prevent the petition rate (or other adverse inference rate), when unreasonable, from prevailing and to block any temptation by Commerce to overreach reality in seeking to maximize deterrence. De Ceceo, 216 F.3d at 1032. Because Commerce selected a dumping margin within the range of Ta Chen’s actual sales data, we cannot conclude that Commerce “overreached reality.” Thus, we will not disturb Commerce’s selection of the 30.95% dumping margin. CONCLUSION Commerce’s decision is supported by substantial evidence and is otherwise in accordance with the law.

Commerce properly decided to apply partial adverse facts available upon Ta Chen for its failure to preserve Sun’s sales data. Furthermore, Commerce acted within its discretion when it selected the highest available dumping margin reflected in the actual sales data before it. Therefore, we affirm the decision of the Court of International Trade. AFFIRMED.