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6210 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Noticesauthority as extending beyond thebounds of authority granted by theFederal Rules of Civil Procedure. ChinJun asserts that the Department isattempting to do what the courtscannot—punish parties for notproviding information which is beyondtheir ‘‘possession, custody or control.’’Therefore, Chin Jun reasons, theDepartment should not apply punitiveBIA but should opt for a reasonablemethod to determine BIA.Chin Jun states that, for certain of itstransactions, as BIA, the Departmentbased FMV on the highest dumpingmargin found in the entire review. ChinJun asserts that the law is well settled,as set out in its previous arguments, thatthe Department cannot apply an adverseBIA rate against Chin Jun because itcooperated to the best of its ability.Consistent with cited case precedence,Chin Jun states that the Departmentshould apply a less-adverse BIA whenthere is a gap in the data or when themissing data are beyond the control ofthe respondent.Chin Jun suggests several options.Chin Jun recommends that theDepartment (1) apply a weightedaveragemargin based on all calculatedrates for the other companies, (2)calculate margins for those Chin Junsales using FMV based on data suppliedby other respondents, or (3) use theweighted-average margin calculated onChin Jun’s sales for which FMV datawere available. Chin Jun states thatthese alternatives are in accordancewith case-law precedent and that theDepartment must employ amethodology that is reasonable, neutral,and non-adverse.Petitioner responds that the BIA ratethe Department applied to Premier wasnot punitive but was, in fact, acooperative rate under the Department’stwo-tiered methodology. Petitioner alsocontends that the deficiencies inPremier’s response extend beyond a lackof supplier data and include significanterrors in Premier’s U.S. sales database.Petitioner argues that, in the event thatcooperative and non-cooperative BIArates are different for the final results,the Department should apply a punitive,non-cooperative BIA rate to Premierbased on the deficiencies withinPremier’s own submitted data.Petitioner claims that, whereas ChinJun characterizes as ‘‘punitive’’ the useof other respondents’ margins in theperiod as BIA, this is an option in thenon-punitive approach to BIA.Petitioner agrees that changes arenecessary in applying BIA in the finalresults but, contrary to Chin Jun’ssuggestions, Petitioner argues that theDepartment should apply, as partialBIA, the highest margin of anyindividual transaction. Given a failureto respond to the questionnaire or thesubmission of an unusable response,Petitioner asserts that the Departmentshould assume that the dumping marginfor all relevant transactions is at least ashigh as the highest dumping margin onany other transaction. To do otherwise,Petitioner claims, would eliminate orreduce the incentive to comply with theagency’s requests. Petitioner states thatif the highest transaction margin is notapplied as BIA, respondents areencouraged to selectively withholdrelevant data, transaction-bytransaction,whenever doing so couldcause the Department to select a lower‘‘best information’’ margin. Thus,Petitioner states, only when Chin Jun’smargin on any individual transaction isthe highest margin for any companyshould Chin Jun’s own margins be usedas BIA.Department’s PositionWe are using a total BIA rate forPremier due to multiple failures on itspart to supply information, includingthe failure to provide, at verification,certain information which was withinPremier’s control. In addition to itsfailure to provide factors information ona transaction-specific basis, Premier wasunable to identify its suppliersaccurately or provide the quantities ofmerchandise supplied to the companyduring the period of review. SeeMemorandum from Analysts to File:Verification Report for Premier Bearingand Equipment, Ltd. (October 31, 1995).Premier did not supply informationnecessary to connect its transactionspecificU.S. sales reporting with theappropriate FOP data necessary toestablish FMV. However, we considerPremier to be a cooperative respondentin this review. We note that Premierprovided timely responses to our initialand supplemental questionnaires andparticipated in a complete verificationof all data that it submitted in thisreview. Therefore, we applied to all U.S.sales, as cooperative total BIA, thehighest calculated rate in this reviewperiod.The Allied-Signal case Premier citesdoes not support its claim that theDepartment’s choice of a BIA rate forPremier is improperly adverse. TheAllied-Signal court noted in its opinionthat the critical difference between firsttier(uncooperative) and second-tier(cooperative) BIA treatment lay in therange of LTFV margins subject toconsideration for BIA purposes in thedetermination underlying the version ofthe two-tiered approach upheld in thatcase (see 996 F.2d at 1191). Allied-Signal clearly permits a second-tiermargin to be based on the highestmargin for any respondent in thecurrent review, even if a first-tier marginis also based on the same value.As indicated in our response toComment 29, the fact that nonresponsivefirms received a lowermargin than Premier in the PreliminaryResults was due to a clerical error. Nonresponsivefirms have not received alower margin than the second-tiermargin we have assigned to Premier inthese final results.Chin Jun provided most of theinformation we requested but failed toprovide FOP information with respect tocertain models. We did not havepublicly available FOP data which wecould use for the models for which ChinJun failed to supply such data. We donot accept Chin Jun’s argument that, forthese models, we should use factorsdata from a different PRC-basedproducer, as such data constitutebusiness proprietary information.Further, using data from anotherproducer might encourage respondentsto withhold data on less-efficientlyproduced models in the expectation thatthe missing data would be providedbased on the experience of moreefficient producers of the same models.Therefore, we have determined that theit is appropriate to use BIA to establishthe dumping margins for the U.S. salesaffected by the lack of FOP data.Under section 776(c) of the Act, wehave the authority to use BIA‘‘whenever a party or any other personrefuses or is unable to produceinformation requested. * * *’’Therefore, the Department can use BIAnot only when a party ‘‘refuses’’ but alsowhen a party is ‘‘unable’’ to provideinformation.Under our BIA methodology, there aretwo general types of BIA, i.e., ‘‘totalBIA’’ and ‘‘partial BIA.’’ We use ‘‘totalBIA’’ for a respondent whose reportingor verification failure is so extensive asto make its entire response unreliable;in this situation, we determine therespondent’s entire dumping margin onthe basis of BIA. We use partial BIA, aswe have here for Chin Jun, when aparty’s responses are deficient inlimited respects yet they are stillreliable in most other respects. In a‘‘total BIA’’ situation, the choice of aparticular BIA rate is dependent onwhether we consider the respondent tohave been ‘‘cooperative’’ or‘‘uncooperative’’ during the review. In a‘‘partial BIA’’ situation, in contrast, weregard the respondent as beingcooperative and the flaws are not sosignificant or extensive that theresponse as a whole is unusable.