Maverick Tube Corporation v. United States , 857 F.3d 1353 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
MAVERICK TUBE CORPORATION, UNITED
STATES STEEL CORPORATION,
Plaintiffs-Cross-Appellants
BOOMERANG TUBE LLC, ENERGEX TUBE, TMK
IPSCO, TEJAS TUBULAR PRODUCTS,
VALLOUREC STAR, L.P., WELDED TUBE USA
INC.,
Plaintiffs
v.
UNITED STATES,
Defendant-Appellee
v.
CAYIROVA BORU SANAYI VE TICARET A.S.,
TOSCELIK PROFIL VE SAC ENDUSTRISI A.S.,
Defendants-Appellees
BORUSAN MANNESMANN BORU SANAYI VE
TICARET A.S., BORUSAN ISTIKBAL TICARET,
Defendants-Appellants
______________________
2016-1649, 2016-1656, 2016-1689
______________________
Appeals from the United States Court of International
Trade in Nos. 1:14-cv-00214-RKM, 1:14-cv-00229-RKM,
2 MAVERICK TUBE CORPORATION v. UNITED STATES
1:14-cv-00233-RKM, 1:14-cv-00240-RKM, Senior Judge R.
Kenton Musgrave.
______________________
Decided: May 30, 2017
______________________
ROBERT E. DEFRANCESCO, III, Wiley Rein, LLP, Wash-
ington, DC, argued for plaintiff-cross-appellant Maverick
Tube Corporation. Also represented by ALAN H. PRICE,
STEPHANIE MANAKER BELL, TESSA V. CAPELOTO, LAURA
EL-SABAAWI, JEFFREY OWEN FRANK, DERICK HOLT, USHA
NEELAKANTAN, ADAM MILAN TESLIK.
KELSEY RULE, Quinn Emanuel Urquhart & Sullivan,
LLP, Washington, DC, argued for plaintiff-cross-appellant
United States Steel Corporation. Also represented by
DEBBIE LEILANI SHON, JONATHAN GORDON COOPER, JON
DAVID COREY, PHILIP CHARLES STERNHELL.
HARDEEP KAUR JOSAN, International Trade Field Of-
fice, Commercial Litigation Branch, Civil Division, United
States Department of Justice, New York, NY, argued for
defendant-appellee United States. Also represented by
BENJAMIN C. MIZER, JEANNE E. DAVIDSON, CLAUDIA
BURKE, Washington, DC; SCOTT DANIEL MCBRIDE, Office
of the Chief Counsel for Import Administration, United
States Department of Commerce, Washington, DC.
MARK B. LEHNARDT, Antidumping Defense Group,
LLC, Washington, DC, argued for defendants-appellees
Cayirova Boru Sanayi Ve Ticaret A.S., Toscelik Profil Ve
Sac Endustrisi A.S. Also represented by DAVID L. SIMON,
Law Offices of David L. Simon, Washington, DC.
JULIE MENDOZA, Morris, Manning & Martin, LLP,
Washington, DC, argued for defendants-appellants Bo-
rusan Mannesmann Boru Sanayi Ve Ticaret A.S., Bo-
MAVERICK TUBE CORPORATION v. UNITED STATES 3
rusan Istikbal Ticaret. Also represented by DONALD
CAMERON, JR., MARY HODGINS, BRADY MILLS, R. WILL
PLANERT, SARAH SUZANNE SPRINKLE.
______________________
Before PROST, Chief Judge, LOURIE and TARANTO, Cir-
cuit Judges.
LOURIE, Circuit Judge.
Borusan Mannesmann Boru Sanayi Ve Ticaret A.S.
and Borusan Istikbal Ticaret (together, “Borusan”) appeal
from the final judgment of the Court of International
Trade (“the Trade Court”) sustaining the determination of
the U.S. Department of Commerce (“Commerce”) on
remand to apply adverse facts available (“AFA”) after
Borusan did not report input purchases for two of its steel
mills. See Maverick Tube Corp. v. United States, No. 14-
00229, 2016 WL 703575 (Ct. Int’l Trade Feb. 22, 2016)
(“Borusan II”); Final Results of Remand Determination,
Maverick Tube Corp. v. United States, No. 14-00229, ECF
No. 92, slip op. at 19–28 (Ct. Int’l Trade Aug. 31, 2015)
(“Remand Results”). Maverick Tube Corporation and U.S.
Steel (together, “Maverick”) cross-appeal, arguing that the
Trade Court should not have vacated Commerce’s original
finding that the Turkish market for hot-rolled steel
(“HRS”) was distorted by government involvement. See
Borusan Mannesmann Boru Sanai Ve Ticaret v. United
States, 61 F. Supp. 3d 1306, 1327–31 (Ct. Int’l Trade
2015) (“Borusan I”); Certain Oil Country Tubular Goods
From the Republic of Turkey, 79 Fed. Reg. 41,964 (Dep’t of
Commerce July 18, 2014) (“Original Results”). In the
alternative, Maverick challenges the Trade Court’s sus-
taining of Commerce’s refusal to apply AFA to the gov-
ernment of Turkey (“GOT”) for failing to provide data on
the Turkish market for HRS or to adequately explain its
lack of data. See Borusan II, 2016 WL 703575, at *2–3.
For the reasons that follow, we affirm.
4 MAVERICK TUBE CORPORATION v. UNITED STATES
BACKGROUND
On July 2, 2013, certain domestic producers of oil
country tubular goods (“OCTG”) filed a petition with
Commerce alleging that GOT was providing countervaila-
ble subsidies to domestic exporters. Borusan I, 61
F. Supp. 3d. at 1310–11. Commerce subsequently insti-
tuted a countervailing duty investigation. Certain Oil
Country Tubular Goods from India and Turkey, 78 Fed.
Reg. 45,502 (Dep’t of Commerce July 29, 2013). Although
myriad arguments were presented to Commerce and the
Trade Court prior to the present appeal, we recount only
those facts relevant to the appealed issues.
After institution, Commerce selected Borusan and
GOT as mandatory respondents. Because HRS is an
input used in the manufacture of OCTG, Commerce then
issued each a questionnaire relating to the provision of
HRS in Turkey. As Borusan and GOT’s responses impli-
cate different issues, we provide further factual and
procedural background relating to each in turn.
A. Borusan
In its initial questionnaire, Commerce asked Borusan
to report its purchases of HRS during the period of inves-
tigation (“POI”), “regardless of whether [Borusan] used
the [HRS] to produce [OCTG]” during that period. Joint
Appendix (“J.A.”) 1645. Borusan responded that it had
three production facilities during the POI: Gemlik, Halka-
li, and Izmit. J.A. 1645. During the POI, Borusan
averred that (1) only Gemlik produced subject OCTG; and
(2) no HRS purchased for the other facilities was trans-
ferred to Gemlik. J.A. 1645. Borusan only provided data
for the Gemlik location because only that location “could
have benefitted from subsidies attributable to the produc-
tion or sale of the OCTG subject merchandise.” J.A. 1645.
Borusan noted that it had difficulties compiling that
information. Specifically, Borusan contended that (1) the
MAVERICK TUBE CORPORATION v. UNITED STATES 5
process of gathering the requested data was “extremely
time consuming and burdensome,” resulting in “well over
300 printed pages”; and (2) gathering the requested data
required Borusan to “extract the data from two different
data systems.” J.A. 1645 & n.2. Accordingly, Borusan
argued that requiring data for the other two locations
“would impose great burdens on [Borusan] for no pur-
pose.” J.A. 1645.
Commerce saw the matter differently. In a supple-
mental questionnaire, Commerce noted that Borusan “did
not . . . report HRS purchases for [Borusan]’s two other
mills,” despite the original questionnaire asking for that
information. J.A. 4393. Thus, Commerce asked Borusan
to “please report all of [Borusan]’s purchases of HRS,
including its purchases for the Halkali and Izmit mills.”
J.A. 4393. Commerce did indicate, however, that if Bo-
rusan was “unable to provide this information,” it should
“explain in detail why [Borusan could] not provide this
information and the efforts [Borusan] made to provide it
to [Commerce].” J.A. 4393.
In response, Borusan did not provide data for the
Halkali and Izmit locations. Instead, Borusan further
detailed its difficulties in compiling data for the Gemlik
location. Borusan reiterated its statements from its
initial response, explained that it had to separate expens-
es manually, and that the process for Gemlik alone “took
over two weeks of preparation by numerous members of
[Borusan]’s staff.” J.A. 5975–76. Thus, Borusan asked
Commerce to “take into consideration the significant
burdens associated with gathering” information relating
to the Halkali and Izmit mills. J.A. 5976.
Borusan then attempted to invoke 19 U.S.C.
§ 1677m(c)(1) and (2), J.A. 5976–77, which provide that if
an interested party notifies Commerce promptly after
receiving a request that it is “unable to submit the infor-
mation requested in the requested form and manner,
6 MAVERICK TUBE CORPORATION v. UNITED STATES
together with a full explanation and suggested alternative
forms,” then Commerce “shall consider the ability of the
interested party” and “may modify such requirements to
the extent necessary to avoid imposing an unreasonable
burden on that party.” Borusan explained that it had
informed Commerce of the burdens associated with pro-
ducing the requested information, and expanded on those
burdens in response to the supplemental questionnaire.
J.A. 5977. Borusan indicated that it believed that the
Gemlik data was sufficient because, in its view, the Gem-
lik data allowed Commerce to capture “any possible
benefit from [Borusan]’s . . . purchases that may have
benefitted the production or sale” of the subject OCTG.
J.A. 5977–78. Nevertheless, Borusan indicated “its
intention []to fully cooperate” with Commerce’s investiga-
tion and “to respond to all reasonable requests for infor-
mation.” J.A. 5978. If Commerce “insist[ed] on full
reporting of all hot-coil purchases from every facility”
then Borusan indicated that it was “ready to provide that
information with the understanding that it will require
several weeks to do so.” J.A. 5978.
Commerce did not respond directly to Borusan’s re-
sponse to the supplemental questionnaire. Instead, in its
preliminary determination, and again in its post-
preliminary calculation memo and final determination,
Commerce determined that it was appropriate to apply
AFA to Borusan because Borusan did not provide data
relating to the Halkali and Izmit locations. Certain Oil
Country Tubular Goods from the Republic of Turkey, 79
Fed. Reg. 41,964, 79 ITADOC 41,964, Issues & Decision
Memorandum, at 9–12 (Dep’t of Commerce July 18, 2014)
(“Original Results Memo”). Commerce noted that it had
twice requested data relating to all purchases of HRS and
that Borusan did not provide those data or provide evi-
dence that they were unavailable. Id. at 10–11. Thus,
Commerce determined that Borusan “failed to cooperate
by not acting to the best of its ability because Borusan
MAVERICK TUBE CORPORATION v. UNITED STATES 7
withheld requested information on its purchases of HRS,
despite having two opportunities, and never requested an
extension.” Id. at 12. Borusan appealed the application
of AFA to the Trade Court, which remanded to Commerce
for further justification of why it needed data for the
Halkali and Izmit locations. Borusan I, 61 F. Supp. 3d at
1348–49.
On remand, Commerce determined that data on the
Halkali and Izmit locations were necessary, and again
determined that it was appropriate to apply AFA given
that Borusan did not provide such data. See Borusan II,
2016 WL 703575, at *3–8 (discussing Commerce’s deter-
mination on remand). Borusan appealed again, and the
Trade Court determined that Commerce’s application of
AFA was supported by substantial evidence because
“Commerce’s request for that information was still out-
standing by the time Commerce reached its preliminary
determination.” Id. at *8. Accordingly, the Trade Court
determined that “substantial evidence supports that
Borusan at least shared if not bore responsibility for the
state of the record, and the state of the law does not,
apparently, require more of Commerce.” Id.
B. GOT
Commerce’s questionnaire to GOT focused more on
the general state of the Turkish HRS industry. Specifical-
ly, Commerce asked GOT to provide “[t]he total volume
and value of Turkish domestic consumption of [HRS] and
the total volume and value of Turkish domestic produc-
tion of [HRS],” as well as data relating to the “percentage
of domestic consumption accounted for by domestic pro-
duction,” the “total volume and value of imports of
[HRS],” and other data relevant to determining whether
companies owned or effectively owned by GOT constituted
a significant share of the market. J.A. 4401–04. GOT
responded that data relating to HRS were not available,
and so provided figures relating to “flat steel products.”
8 MAVERICK TUBE CORPORATION v. UNITED STATES
J.A. 4401. GOT indicated that the flat steel data included
“hot-rolled coils, cold-rolled coils, stainless coils, etc.” and
referred to those numbers to answer Commerce’s ques-
tions. See J.A. 4401–03. In responding to another ques-
tion, however, GOT stated that “the Erdemir Group . . .
produces [a] majority of HRS in Turkey.” J.A. 4404.
In its response, GOT also referenced a number of doc-
uments that appeared to describe government aid to the
steel industry. See J.A. 16724–25. Accordingly, Com-
merce asked to review those documents. J.A. 16724.
GOT responded that the documents were produced as a
result of bilateral trade agreements between Turkey and
the European Union (“EU”), and the process was conduct-
ed “on condition of confidentiality.” J.A. 16724. Moreo-
ver, GOT claimed that the documents requested by
Commerce included proprietary information of companies
not subject to the investigation, and that GOT therefore
was not able to share those documents. J.A. 16724.
In its final determination, Commerce found that GOT
exercised meaningful control over Erdemir Group and its
subsidiary Isdemir (together, “Erdemir”), and therefore
that it was appropriate to treat them as government
bodies. Original Results Memo, 79 Fed. Reg. 41,964, 79
ITADOC 41,964, at 21–22. Borusan’s data indicated that
it had purchased HRS from Erdemir; accordingly, Com-
merce turned to analyzing whether Borusan had received
a benefit in making those purchases by comparing the
price Borusan paid to other prices. Id. at 22–23.
Commerce generally prefers to compare prices paid to
actual transactions in the country in question. See 19
C.F.R. § 351.511(a)(2)(i). If the market in that country is
distorted by government involvement, however, then
Commerce will consider the prices paid in that country as
not an appropriate basis of comparison, Preamble; Coun-
tervailing Duties; Final Rule, 63 Fed. Reg. 65348, 65377
(Dep’t of Commerce Nov. 25, 1998) (the “Preamble”), and
MAVERICK TUBE CORPORATION v. UNITED STATES 9
will instead look to world market prices, 19 C.F.R.
§ 351.511(a)(2)(i).
Commerce began here by determining whether the
Turkish HRS market was distorted. Commerce noted
that GOT averred that HRS production and consumption
data were unavailable for the POI, and that the flat steel
data included many non-HRS products. Original Results
Memo, 79 Fed. Reg. 41,964, 79 ITADOC 41,964, at 23.
Commerce relied upon import statistics for hot-rolled coil
and proprietary business information, however, to find
that domestic Turkish production of HRS “accounted for a
majority of the total supply (inclusive of imports) in
Turkey during the POI and previous two years.” Id.
Commerce also noted that GOT had admitted that Erde-
mir “accounts for the majority of HRS production in
Turkey.” Id. at 24. Because domestic production ac-
counted for a majority of total supply and Erdemir ac-
counted for a majority of domestic production, Commerce
found that Erdemir accounted for, at a minimum, a
substantial portion of the domestic market, and so “the
level of government involvement in the market was such
that prices would be significantly distorted.” Id.
In reaching that conclusion, Commerce cited the Pre-
amble, which states that Commerce recognizes that while
“government involvement in a market may have some
impact on the price of the good or service in that market,
such distortion will normally be minimal unless the
government provider constitutes a majority or, in certain
circumstances, a substantial portion of the market.”
Preamble, 63 Fed. Reg. at 65377. Accordingly, Commerce
determined that prices paid in Turkey could not be inde-
pendent of the government price, and used world prices to
determine that Borusan had received “a countervailable
subsidy of 15.58 percent.” Original Results Memo, 79 Fed.
Reg. 41,964, 79 ITADOC 41,964, at 24–26.
10 MAVERICK TUBE CORPORATION v. UNITED STATES
Along with the application of AFA, Borusan appealed
to the Trade Court Commerce’s finding that the Turkish
market was distorted. The Trade Court vacated Com-
merce’s finding of distortion and remanded for further
explanation. Borusan I, 61 F. Supp. 3d. at 1327–31. The
Trade Court explained that Commerce’s finding required
further explanation because (1) the Preamble indicates
that “distortion will normally be minimal unless the
government provider constitutes a majority or, in certain
circumstances, a substantial portion of the market”;
(2) Commerce had concluded that Erdemir only controlled
a substantial portion of the market; and (3) Commerce
had not cited any actual evidence of market distortion or
explained the “certain circumstances” giving rise to its
finding. Id. at 1328–31 (citing Preamble, 63 Fed. Reg. at
65,377). The case was consolidated for remand with
another case involving Toscelik Profil ve Sac Endustrisi
A.S. and Cayirova Boru Sanayi ve Ticaret A.S. (together,
“Toscelik”), other Turkish companies subject to similar
claims by domestic industry litigants. Borusan II, 2016
WL 703575, at *2.
On remand, Commerce agreed that the language in
the Preamble “does suggest a possible limitation on Com-
merce’s analysis to ‘certain circumstances’ when ‘a sub-
stantial portion of the market’ is at issue,” but “does not
suggest the same constraint when the government ‘consti-
tutes a majority of the market.’” See Remand Results, slip
op. at 13. In the present case, however, Commerce
averred that the data “suggest the possibility that the
government provider in this case might, in fact, have
constituted a majority of the market.” Id. Commerce
noted that “the record evidence on this point is incomplete
because GOT did not respond fully and comprehensively
to Commerce’s requests for information,” id. at 13–14, and
argued that it never found that Erdemir accounted for
less than a majority of the Turkish HRS market; instead,
it was “Commerce’s cautious conclusion based on the
MAVERICK TUBE CORPORATION v. UNITED STATES 11
limited data on the record,” id. at 14. Thus, Commerce
indicated that it was conducting its distortion analysis on
remand under protest for two reasons. First, because the
situation was “different from one in which the record
information shows definitely that government providers
account for less than the majority of the market for a
good.” Id. at 14. Second, Commerce did not have relevant
information because GOT did not provide it. Id. at 15.
Even though Commerce noted that the GOT was be-
ing “rewarded for not providing relevant information,” id.
at 15, Commerce refused to apply AFA to GOT, id. at 29–
32. Commerce noted that GOT stated that documents
containing other relevant information could not be shared
because of confidentiality agreements. Id. at 30. As to
the HRS production information, Commerce expressed
that although “it seems highly unlikely that the GOT
would be unable to gather information on domestic steel
production in Turkey, there is no evidence on the record
which would contradict the GOT’s claim.” Id. at 30–31.
Commerce also concluded that reassessing GOT’s failure
to provide data was outside of the scope of the remand
order from the Trade Court. Id.
When it performed its analysis, Commerce deter-
mined that there was insufficient evidence to support a
finding that Erdemir accounted for a majority of the HRS
market. Id. at 15–16. Commerce also determined that
there was no evidence of the type of government controls
that had led it to a conclusion of market distortion in past
cases. Id. at 16–17. As it found that there was no evi-
dence of market distortion in the record, Commerce then
recalculated Borusan’s countervailable subsidy using
Turkish transactions to be 2.08 percent. Id. at 18.
The Trade Court affirmed. Borusan II, 2016 WL
703575, at *2–3. It reasoned that, notwithstanding
Commerce’s protests, neither Commerce nor Maverick
could identify any dispositive evidence of market distor-
12 MAVERICK TUBE CORPORATION v. UNITED STATES
tion, and nothing indicated that GOT was not being
truthful regarding its access to data or the confidentiality
requirements. Id. at *3. Given the evidence in the record,
the Trade Court concluded that substantial evidence
supported Commerce’s finding of no distortion and its
decision not to apply AFA to GOT. Id.
Borusan timely appealed and Maverick timely cross-
appealed. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(5).
DISCUSSION
In appeals from the Trade Court, we apply the same
standard of review that it applies, upholding Commerce’s
determinations unless they are “unsupported by substan-
tial evidence on the record, or otherwise not in accordance
with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). A finding is
supported by substantial evidence if a reasonable mind
might accept the evidence as sufficient to support the
finding. Consol. Edison Co. of N.Y. v. NLRB, 305 U.S.
197, 229 (1938). Although we review the decisions of the
Trade Court de novo, “we give great weight to the in-
formed opinion of the [Trade Court] . . . , and it is nearly
always the starting point of our analysis.” Ningbo Dafa
Chem. Fiber Co. v. United States, 580 F.3d 1247, 1253
(Fed. Cir. 2009) (internal quotation marks, brackets, and
citations omitted).
A. Borusan’s Appeal
Borusan argues that Commerce’s decision to apply
AFA is unsupported by substantial evidence and contrary
to law because Commerce must consider difficulties
encountered by an interested party in responding to
requests and modify requirements to avoid imposing an
unreasonable burden. See Borusan’s Br. 19 (citing 19
U.S.C. § 1677m(c)(1)). Borusan contends that it cooperat-
ed with Commerce’s requests to the best of its ability
because Commerce never unconditionally instructed
MAVERICK TUBE CORPORATION v. UNITED STATES 13
Borusan to supply the information from the Halkali and
Izmit locations; instead, Commerce’s supplemental ques-
tionnaire asked Borusan to provide the information or
else explain why it could not do so. Because Borusan
provided more detail explaining why production of the
information relating to the Halkali and Izmit locations
was unduly burdensome, Borusan argues, it directly
responded to Commerce’s requests and thus cooperated to
the best of its ability. Finally, Borusan contends that if
Commerce determined that its supplemental response
was insufficient, it was required to give Borusan “an
opportunity to remedy or explain the deficiency.” 19
U.S.C. § 1677m(d).
Maverick and the United States respond that Com-
merce’s application of AFA is supported by substantial
evidence. They contend that by failing to provide the data
for the Halkali and Izmit locations in its first response,
and again failing to provide those data in response to the
supplemental questionnaire, Borusan did not cooperate to
the best of its ability. Moreover, Maverick and the United
States contend that Borusan never triggered 19 U.S.C.
§ 1677m(c)(1) or gave a proper response to Commerce’s
supplemental questionnaire because it never indicated
that it was unable to provide the requested information.
They contend that Borusan was on notice that its initial
response was deficient because Commerce issued the
supplemental questionnaire seeking the same infor-
mation.
We agree with Maverick and the United States that
substantial evidence supports Commerce’s decision to
apply AFA. Commerce requested information from Bo-
rusan, which Borusan did not provide and never claimed
that it was unable to provide.
“If [Commerce] . . . finds that an interested party has
failed to cooperate by not acting to the best of its ability to
comply with a request for information from [Commerce],
14 MAVERICK TUBE CORPORATION v. UNITED STATES
[then Commerce] . . . may use an inference that is adverse
to the interests of that party in selecting from among the
facts otherwise available.” 19 U.S.C. § 1677e(b) ); see Nan
Ya Plastics Corp. v. United States, 810 F.3d 1333, 1337–
38 (Fed. Cir. 2016) (discussing burdens of proof in admin-
istrative proceedings before Commerce). “Compliance
with the ‘best of its ability’ standard is determined by
assessing whether respondent has put forth its maximum
efforts to provide Commerce with full and complete an-
swers to all inquiries in an investigation.” Nippon Steel
Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir.
2003).
“Because Commerce lacks subpoena power, Com-
merce’s ability to apply adverse facts is an important
one.” Essar Steel Ltd. v. United States, 678 F.3d 1268,
1276 (Fed. Cir. 2012). Thus, “[t]he purpose of the adverse
facts statute is ‘to provide respondents with an incentive
to cooperate’ with Commerce’s investigation.” Id. (quoting
F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United
States, 216 F.3d 1027, 1032 (Fed. Cir. 2000)).
Borusan does not dispute that it had access to infor-
mation relating to the Halkali and Izmit locations, and
that it did not provide that information. Moreover, alt-
hough Borusan challenged before the Trade Court wheth-
er that information was necessary for Commerce’s
determination, it does not raise that challenge before us.
Accordingly, Borusan has waived any argument that the
information from the Halkali and Izmit locations was
unnecessary for Commerce’s investigation. See Lifestyle
Enter., Inc. v. United States, 751 F.3d 1371, 1377 (Fed.
Cir. 2014).
Thus, Borusan effectively concedes that it possessed
information necessary to Commerce’s investigation, that
Commerce requested that information, and that Borusan
did not provide that information. Such behavior cannot
be considered “maximum effort to provide Commerce with
MAVERICK TUBE CORPORATION v. UNITED STATES 15
full and complete answers.” Nippon Steel Corp., 337 F.3d
at 1382.
Borusan’s arguments do not convince us otherwise.
First, although Commerce’s supplemental request re-
quired it only to provide the information or explain why it
was unable to do so, Borusan did neither. Borusan ad-
mits it did not provide the information, and the explana-
tion of its difficulties does not constitute a statement that
it was unable to provide the information.
Borusan’s invocation of § 1677m(c) in its supple-
mental response also does not change the outcome. By its
own terms, § 1677m(c)(1) only applies where a party
notifies Commerce “that such party is unable to submit
the information requested in the requested form and
manner, together with a full explanation and suggested
alternative forms . . . .” Borusan never indicated that it
was unable to provide the relevant information. Indeed,
Borusan admitted that it could provide that information.
Borusan also never suggested an alternative for the
requested information; instead, its “alternative” was not
providing the information at all.
Finally, we are not convinced by Borusan’s argument
relating to § 1677m(d). Borusan had already failed to
provide the information requested in Commerce’s original
questionnaire, and the supplemental questionnaire noti-
fied Borusan of that defect. § 1677m(d) does not require
more. See NSK Ltd. v. United States, 481 F.3d 1355, 1360
n.1 (Fed. Cir. 2007) (“Commerce . . . satisfied its obliga-
tions under section 1677m(d) when it issued a supple-
mental questionnaire specifically pointing out and
requesting clarification of [the] deficient responses.”).
Accordingly, Commerce’s application of AFA to Bo-
rusan is supported by substantial evidence and in accord-
ance with law.
16 MAVERICK TUBE CORPORATION v. UNITED STATES
B. Maverick’s Cross-Appeal
Maverick’s cross-appeal raises two issues. First, it
argues that the Trade Court should not have vacated
Commerce’s original determination that the Turkish
market for HRS was distorted. Second, it argues in the
alternative that Commerce’s decision not to apply AFA to
GOT is not supported by substantial evidence. We take
each issue in turn.
Maverick argues that Commerce’s original determina-
tion was supported by substantial evidence because there
was evidence that (1) Erdemir produced the majority of
domestic HRS; (2) domestic production of HRS constituted
a majority of the total supply; and (3) the share of domes-
tic production of HRS was greater than the shares calcu-
lated for the flat-steel data provided by GOT. Because the
evidence establishes that Erdemir controls at least a
substantial portion, and possibly a majority, of the mar-
ket, Maverick contends, this case is different from those
where the government certainly controlled less than a
majority. Although the Trade Court faulted Commerce
for not explaining the “certain circumstances” leading to a
finding of distortion, Maverick argues that the Trade
Court ignored the role that GOT played in creating the
deficient record.
Borusan and Toscelik respond that Commerce’s origi-
nal determination of distortion was not supported by
substantial evidence. They aver that there was no evi-
dence that Erdemir controlled a majority of the Turkish
market for HRS, and that even if Erdemir controlled a
substantial portion of the market there was no evidence of
circumstances which would suggest distortion. Instead,
they contend, Commerce applied a per se rule that is
inconsistent with the Preamble.
We agree with Borusan and Toscelik that Commerce
did not adequately support its original finding of market
distortion. Under the Preamble, which all parties treat as
MAVERICK TUBE CORPORATION v. UNITED STATES 17
binding, government involvement “will normally be
minimal unless the government provider constitutes a
majority or, in certain circumstances, a substantial por-
tion of the market.” 63 Fed. Reg. at 65377. Commerce’s
analysis did not purport to find that Erdemir constituted
a majority of the market and instead only found that
Erdemir was the majority domestic producer and domes-
tic production accounted for a majority of the Turkish
market, and so “at a minimum, Erdemir . . . account[ed]
for ‘a substantial portion of the market.’” Original Results
Memo, 79 Fed. Reg. 41,964, 79 ITADOC 41,964, at 24
n.181 (quoting Preamble, 63 Fed. Reg. at 65377). From
there, Commerce jumped to the finding that the market
was distorted, without addressing or finding any circum-
stances which would actually suggest distortion. See id.
at 24. Although it does appear possible that GOT con-
trolled a majority of the market, neither Commerce nor
Maverick cite any record evidence establishing that fact,
and they also do not cite any record evidence of any
indicia of distortion. We thus agree with Borusan, Tosce-
lik, and the Trade Court that Commerce applied what
amounted to a per se rule of market distortion after find-
ing GOT controlled a substantial portion of the market,
despite the Preamble’s language to the contrary. There-
fore, Commerce’s original finding was not supported by
substantial evidence.
Maverick next argues that Commerce erred on re-
mand by not applying AFA to GOT. Maverick contends
that because GOT failed to cooperate fully with Com-
merce’s investigation by not providing data for HRS
production and not supplying requested documents, it did
not act to the best of its ability. Maverick argues that not
applying AFA frustrates the purpose of the statute by
allowing GOT to benefit from its lack of responsiveness.
Borusan and Toscelik respond that Commerce’s de-
termination not to apply AFA to GOT is discretionary, not
mandatory, and is supported by substantial evidence.
18 MAVERICK TUBE CORPORATION v. UNITED STATES
They contend that Commerce never found that GOT failed
to respond to the best of its ability or withheld infor-
mation, and in fact noted that GOT had provided timely
responses to all of its questionnaires. Moreover, they
assert that Commerce correctly determined that there
was no evidence contradicting GOT’s claim that it did not
possess production data for HRS or that requested docu-
ments could not be disclosed due to confidentiality agree-
ments.
We agree with Borusan and Toscelik that Commerce’s
decision not to apply AFA is supported by substantial
evidence. Maverick’s argument that GOT withheld
relevant information assumes that GOT had access to
that information; as Commerce noted, however, there was
no evidence that GOT had access to or maintained the
HRS data that it claimed that it was unable to provide.
Remand Results, slip op. at 30–31. Moreover, nothing
contradicted GOT’s claim that the documents sought by
Commerce could not be shared due to confidentiality
agreements. See id. at 30.
CONCLUSION
We have considered the remaining arguments, but
find them unpersuasive. For the foregoing reasons, the
decision of the Trade Court is affirmed.
AFFIRMED
COSTS
No costs.