United States Court of Appeals 

for the Federal Circuit ______________________ 

HYUNDAI ELECTRIC & ENERGY SYSTEMS CO., 

LTD.,

Plaintiff-Appellant

v.

UNITED STATES, ABB ENTERPRISE SOFTWARE 

INC.,

Defendants-Appellees

______________________ 

2021-1009

______________________ 

Appeal from the United States Court of International 

Trade in No. 1:19-cv-00058-MAB, Judge Mark A. Barnett.

______________________ 

Decided: October 4, 2021

______________________ 

RON KENDLER, White & Case LLP, Washington, DC, 

argued for plaintiff-appellant. Also represented by DAVID 

EDWARD BOND. 

 KELLY A. KRYSTYNIAK, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. 

Also represented by BRIAN M. BOYNTON, JEANNE DAVIDSON,

LOREN MISHA PREHEIM; DAVID W. RICHARDSON, Office of 

the Chief Counsel, United States Department of Commerce, Washington, DC. 

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2 HYUNDAI ELECTRIC v. US

 MELISSA M. BREWER, Kelley Drye & Warren, LLP, 

Washington, DC, argued for defendant-appellee ABB Enterprise Software Inc. Also represented by ROBERT ALAN 

LUBERDA, DAVID C. SMITH, JR. 

 ______________________ 

Before NEWMAN, REYNA, and HUGHES, Circuit Judges.

REYNA, Circuit Judge.

Hyundai Electric & Energy Systems Co. appeals a 

judgment of the U.S. Court of International Trade sustaining the U.S. Department of Commerce’s final results in the 

fifth administrative review of the antidumping duty order 

on large power transformers from the Republic of Korea. 

Hyundai challenges Commerce’s decision to cancel verification on the grounds that the information submitted by 

Hyundai was unverifiable, Commerce’s reliance on facts 

otherwise available, and Commerce’s use of an adverse inference in selecting from among the facts otherwise available. For the reasons stated below, we affirm. 

I 

The U.S. Department of Commerce (“Commerce”) imposes antidumping duties on imported products that are 

sold or likely to be sold in the U.S. at “less than fair value” 

(“dumping”) when those sales threaten or cause material 

injury to a U.S. industry. 19 U.S.C. § 1673. In general, to 

determine whether such products are sold at less than fair 

value, Commerce undertakes an investigation to ascertain 

the difference between the “normal value” of the imported 

goods, i.e., the sales price in the home market, and the price 

at which the goods are sold in the U.S. Id. §§ 1677(35), 

1677b(a). If Commerce determines that a company is selling goods in the U.S. for less than their normal value, and 

if the U.S. International Trade Commission (“ITC”) determines that such dumping threatens or causes material 

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HYUNDAI ELECTRIC v. US 3

injury to a U.S. industry,1 Commerce issues an antidumping duty order imposing an appropriate antidumping duty 

rate to remedy the threat or injury. Id. §§ 1673d(a)(1), 

(b)(1), (c)(2). After Commerce issues such an order, an affected party may request an annual administrative review 

so that Commerce can update dumping margins, if appropriate, to address continued dumping, if any. See 19 U.S.C. 

§ 1675. 

Section 1677m governs Commerce’s conduct of administrative reviews and defines, in certain respects, how Commerce must treat information submitted by an interested 

party. For example, if an interested party promptly notifies Commerce after receiving an information request that 

it is “unable to submit the information requested in the requested form and manner,” and (among other things) proposes an alternative form, Commerce must consider the 

party’s proposal and may modify its requirements to avoid 

an “unreasonable burden” on the party. Id. § 1677m(c)(1). 

Commerce must also notify the interested party of a deficiency in its response and, if practicable, provide the party 

an opportunity to rectify the deficiency. Id. § 1677m(d). In 

certain circumstances, § 1677m prohibits Commerce from 

declining to consider submitted information even though it 

does not comply with all of Commerce’s requirements. See 

id. § 1677m(e). That prohibition applies where the information is “necessary to the determination” and all of the 

following requirements are met:

(1) the information is submitted by the deadline established for its submission,

(2) the information can be verified,

1 While the respective investigations of Commerce 

and the ITC are conducted concurrently, this appeal only 

involves Commerce’s less than fair value investigation. 

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4 HYUNDAI ELECTRIC v. US

(3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination,

(4) the interested party has demonstrated that it 

acted to the best of its ability in providing the information and meeting the requirements established by the administering authority or the 

Commission with respect to the information, and

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

Id. 

Commerce is required to “verify all information relied 

upon” in making a final determination in an administrative review in certain circumstances, i.e., when a specified 

domestic interested party files a timely verification request 

and no verification was conducted in the two immediately 

preceding administrative reviews. Id. § 1677m(i); 

19 C.F.R. § 351.307(b)(1)(v). Commerce’s regulations also 

provide that Commerce will conduct a verification when 

good cause exists. 19 C.F.R. § 351.307(b)(1)(iv). The regulations further set deadlines for the submission of “factual 

information,” which vary depending on the type of information. Id. § 351.301(c). For factual information other 

than the types specified in § 351.301(c)(1)-(4), 

§ 351.301(c)(5) sets a submission deadline of “30 days before the scheduled date of the preliminary results in an administrative review, or 14 days before verification, 

whichever is earlier.” Id. § 351.301(c)(5). 

Section 1677e applies when information requested by 

Commerce is incomplete or inaccurate. Under that section, 

Commerce must make determinations based on “facts otherwise available” when “necessary information is not available on the record,” id. § 1677e(a)(1), or when a party 

engages in the following conduct:

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HYUNDAI ELECTRIC v. US 5

(A) withholds information that has been requested 

by the administering authority or the Commission 

under this subtitle,

(B) fails to provide such information by the deadlines for submission of the information or in the 

form and manner requested, subject to subsections 

(c)(1) and (e) of section 1677m of this title,

(C) significantly impedes a proceeding under this 

subtitle, or

(D) provides such information but the information 

cannot be verified as provided in section 1677m(i) 

of this title, 

id. § 1677e(a)(2).2 

Section 1677e also permits Commerce to draw an adverse inference “in selecting from among the facts otherwise available” when “an interested party has failed to 

cooperate by not acting to the best of its ability to comply 

with a request for information.” Id. § 1677e(b)(1)(A). In 

such a case, Commerce is not required to determine a 

dumping margin as if the interested party had complied. 

Id. § 1677e(b)(1)(B). Commerce may draw an adverse inference from various sources of information, including the 

petition, a final determination in the underlying investigation, any previous administrative review, or “any other information placed on the record.” Id. § 1677e(b)(2). If 

Commerce properly draws an adverse inference, then it 

may “use any dumping margin from any segment of the 

2 Section 1677e(a) further specifies that the requirement to rely on facts otherwise available is subject to the 

requirements in Section 1677m(d), which requires Commerce to provide notice and, if practicable, an opportunity 

to rectify a deficiency in a party’s response to a request for 

information from Commerce. 

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6 HYUNDAI ELECTRIC v. US

proceeding under the applicable antidumping order,” id.

§ 1677e(d)(1)(B); it may exercise discretion to apply “the 

highest” dumping margin if warranted based on “the situation that resulted in the administering authority using an 

adverse inference,” id. § 1677e(d)(2); and it is not required 

to estimate what the dumping margin would have been if 

the interested party had cooperated or to demonstrate that 

the dumping margin selected reflects the alleged commercial reality of the interested party, id. § 1677e(d)(3). 

II

A 

On October 16, 2017, Commerce initiated its fifth administrative review of the antidumping duty order on large 

power transformers (“LPTs”) from the Republic of Korea for 

the period of review (i.e., “POR”) of August 1, 2016, to 

July 31, 2017. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 82 Fed. Reg. 48,051 

(Oct. 16, 2017) (J.A. 26). Commerce selected Hyundai 

Heavy Industries Co. as a mandatory respondent. Hyundai Electric & Energy Systems Co. (“Hyundai”) later became the successor-in-interest to Hyundai Heavy 

Industries Co. J.A. 27985 n.1.

On December 13, 2017, Commerce issued its initial

questionnaire seeking specific information related to 

Hyundai’s U.S. and home market sales of LPTs during the 

POR. This case involves two categories of information that 

Commerce requested from Hyundai, namely product-specific cost information and cost-reconciliation information. 

Product-Specific Cost Information

In Section D of its initial questionnaire, Commerce requested information regarding Hyundai’s costs of producing LPTs. See J.A. 205–69. That section specifically sought 

information about, inter alia, Hyundai’s cost accounting 

system, including for example “the level of product specificity over which [Hyundai’s] cost accounting system 

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HYUNDAI ELECTRIC v. US 7

normally captures production costs.” J.A. 211. It also 

asked Hyundai to “[i]dentify and quantify” the “differences 

between the reporting methodology and the normal books 

and records.” J.A. 217. In other words, Commerce sought 

information regarding any discrepancies between the cost 

data reported to Commerce and the cost data actually kept 

in Hyundai’s normal books and records. Id. In response, 

Hyundai disclosed that it had shifted costs among projects 

in the ordinary course of business to show that each LPT 

project was profitable. J.A. 7687; Appellant’s Br. 30. 

On May 24, 2018, Commerce issued a supplemental 

questionnaire. J.A. 16748–50. In question 9, Commerce

referenced Hyundai’s cost shifting and requested a detailed 

disclosure of “the total costs recorded in [Hyundai’s SAP 

accounting system], the total costs reported to the Department, and an itemization of the materials and related costs 

making up the difference” for each sale in the U.S. market 

and home market. J.A. 16748. Commerce also asked 

Hyundai to “[e]xplain in detail how [it] was able to identify 

and quantify the costs that were miss-recorded [sic] in [its] 

SAP system” and to “show how the adjustments in each 

project offset each other and reconcile in total.” 

J.A. 16748–49. 

In response, Hyundai submitted Attachment SD-16, 

which included (i) a “Breakdown of Direct Material Cost by 

Material Type” on an annual basis from 2015 to 2017; (ii) a 

“Monthly Direct Material Cost” for the same three years;

and (iii) a “Breakdown of Direct Material Cost by Project 

Number” for the month of March 2016, which preceded the 

period of review. J.A. 16909–12. Hyundai explained that 

the attachment showed the differences between the LPT 

projects’ SAP bills of materials and their actual bills of materials. J.A. 16788. Hyundai further explained, “To prepare the reconciliation, Hyundai downloaded the BOMs 

[i.e., bills of materials] from both systems and by computer 

program was able to trace all materials in the [actual] 

BOMs to the SAP BOMs.” J.A. 16788–89. 

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8 HYUNDAI ELECTRIC v. US

On July 12, 2018, Commerce sent Hyundai a second 

supplemental questionnaire. J.A. 25047–50. Commerce 

explained, “You did not provide a response to question 9,” 

and it listed a schedule of required items: 

a. Total POR costs recorded in SAP and the total 

POR costs reported to [Commerce]. Ensure the total POR cost reported to [Commerce] agrees [with 

Hyundai’s cost of production] file.

b. For the difference between the SAP costs and the 

reported costs . . . itemize each specific material 

and conversion cost item which make up that difference. For example, identify all parts and raw

materials that are included or excluded from other 

LPTs.

c. For all SAP and reported cost itemized material 

and [conversion] cost differences, show which LPT 

project the itemized items were shifted to / from in 

SAP.

d. Explain in detail how [Hyundai was] able to 

identify and [quantify] the costs which were missrecorded [sic] in SAP.

J.A. 25049. 

Hyundai responded again on July 23, 2018. 

J.A. 27355–57, 27366–86. This time, Hyundai provided Attachment 2SD-1, a worksheet that divided the total cost 

differences by LPT project for reconciliation purposes into 

six categories: “(1) expenses recorded after the year of cost 

of goods sold (‘COGS’) recognition for the project; (2) recalculated silicon steel cost; (3) recalculated other material 

costs; (4) material costs incurred after the year of COGS

recognition; (5) recalculated scrap; and (6) recalculated 

fixed overhead.” J.A. 27355–56, 27369. For a single category, “other material costs,” Attachment 2SD-1 purported 

to show given costs shifted to particular projects and

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HYUNDAI ELECTRIC v. US 9

described the corresponding types of materials. See 

J.A. 27370. 

Regarding silicon steel costs, Hyundai explained that, 

“[u]nlike all other materials, silicon steel is fungible and it 

is not possible to trace the projects to and from which silicon steel cost might have been shifted.” J.A. 27356. Hyundai further stated that “actual silicon steel consumption is 

not recorded on a project basis, and only can be calculated 

manually by reference to the silicon steel processing reports.” Id. In Attachment 2SD-1, Hyundai provided data 

on shifting of steel costs for one sample LPT project. 

J.A. 27369–70. Hyundai also referenced earlier-submitted 

Attachment SD-18, which compared, for one LPT project, 

the “projected consumption” (calculated by engineers to 

“achieve the desired electrical properties”) and the “actual 

consumption” as stated in the steel processing report. 

J.A. 16789–90, 16925. Hyundai explained that “there can 

be differences between the core steel purchased for a particular transformer and the [silicon] steel consumed,” and 

it disclosed the “yield loss” for the sample provided in Attachment SD-18. J.A. 16789–90. With respect to the remaining four categories, Hyundai disclosed aggregate cost 

data. 

Cost-Reconciliation Information

In its initial questionnaire, Commerce asked Hyundai 

to provide worksheets, similar to the sample Commerce 

provided, “that illustrate how the costs reported on the financial statements reconcile to the general ledger or trial 

balance, to the cost accounting system (i.e., the source used 

to derive the reported costs), and to the reported costs.” 

J.A. 216–18. Hyundai responded by providing a worksheet 

called WS2 in Attachment D-20 that identified nine categories of costs and, for each category, distinguished between “Subject Merchandise” and “Non-subject 

Merchandise.” J.A. 8033; see also J.A. 8. 

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10 HYUNDAI ELECTRIC v. US

Commerce issued a supplemental questionnaire that 

requested Hyundai to “[d]iscuss how [it] separated cost of 

sales on tab WS2 between MUC and non-MUC”3 and to 

“[d]emonstrate and provide supporting documentation for 

the MUC and non-MUC breakout for [transformers].” 

J.A. 16750. Hyundai responded by providing Attachment 

SD-23, which showed the same information as that provided in Hyundai’s initial response. J.A. 17076. 

Subsequently, after Commerce issued its preliminary 

results, Hyundai submitted a case brief in which it clarified 

for the first time that the line item for non-MUC for transformers included the cost of manufacturing for “1) non-subject merchandise; 2) third-country sales; 3) U.S. shipments 

that did not enter the United States during the POR; and, 

4) home market shipments made outside the POR and window periods.” J.A. 28309. Hyundai did not separately 

identify these reconciliation items in its questionnaire responses. 

B 

Commerce issued its preliminary results on August 31, 

2018, assigning Hyundai a 60.81 percent ad valorem antidumping margin, the same margin assigned in the previous administrative review. J.A. 27985–8008. Commerce 

explained that it used an adverse inference in selecting 

from the facts otherwise available because Hyundai “had 

failed to cooperate by not acting to the best of its ability to 

comply with a request for information to reconcile reported 

costs at the individual LPT project-level to its normal records.” J.A. 27998. Commerce found that “[t]he missing information [wa]s necessary for Commerce to analyze 

Hyundai’s section D responses and to calculate a margin.” 

3 “MUC” refers to merchandise under consideration, 

and “Non-MUC” refers to merchandise not under consideration.

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HYUNDAI ELECTRIC v. US 11

Id. Specifically, regarding product-specific costs, Commerce explained that Hyundai “failed to provide part-specific itemized cost differences.” J.A. 28002–03. In 

submitting Attachment 2SD-1, Hyundai “only provided the 

cost differences in aggregate” and averred that “it [wa]s not 

possible to trace” cost differences for silicon steel, the largest material input. J.A. 28003. 

Commerce also explained, regarding cost reconciliation, that Hyundai had “failed to provide its cost reconciliation in the format requested” and failed to adjust the cost 

of production figures from fiscal year cost of goods sold to 

period-of-review cost of goods sold. Id. Commerce concluded that, despite having “many opportunities,” Hyundai 

“failed to provide support for the cost differences or an accurate cost reconciliation” and therefore “Commerce was 

left with unreliable cost data.” J.A. 28004. Commerce also 

stated that “the information submitted by the established 

deadline cannot be verified,” id., and shortly thereafter it 

sent Hyundai a letter confirming that it had decided not to 

conduct a verification. J.A. 28097. 

On April 12, 2019, after the parties had submitted their 

case briefs following Commerce’s preliminary results, Commerce published its final results and an accompanying issues and decision memorandum. J.A. 28295–321. 

Commerce again assigned Hyundai a dumping margin of 

60.81 percent ad valorem, J.A. 28320, and it “continue[d]

to find that Hyundai failed to provide the information as 

requested, or to sufficiently address its manipulation of 

transformer costs, within its own normal books and records,” J.A. 28301. 

Commerce first addressed the reliability of Hyundai’s 

product-specific costs and found that Hyundai inadequately responded to the initial questionnaire by “only 

identif[ying] the cost difference in aggregate for each [LPT] 

project” and by “fail[ing] to fully distinguish each quantity 

and value difference between its SAP[] costs and the costs 

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12 HYUNDAI ELECTRIC v. US

reported to Commerce by cost type (i.e., raw materials, direct labor, etc.).” J.A. 28304. It further found that Hyundai 

inadequately responded to Commerce’s supplemental 

questionnaire because “Hyundai again identified only the 

total POR cost differences” and, for one sample month outside the period of review, “Hyundai provided a table showing the difference between each project’s SAP[] BOM and

the [actual] BOM, and not between SAP[] and the reported 

costs.” J.A. 28304. 

Commerce likewise found that Hyundai inadequately 

responded to its second supplemental questionnaire by 

providing the requested level of detail for “only one of the 

six categories of cost, i.e., other materials, that it identified 

as being manipulated.” J.A. 28305. Regarding the silicon 

steel category, Commerce explained that “Hyundai failed 

to demonstrate and support how each project’s reported silicon steel consumption quantities and per-unit input values were calculated, that they truly represent actual 

consumption, and how the per-unit input valuations differed from those recorded in SAP[].” Id. “Hyundai simply 

attributed the difference in quantities between the silicon 

steel processing report and the engineering calculations to 

yield losses”; however, Commerce rejected that attribution 

because “[y]ield losses are typically based on the difference 

between the consumption for the job and the actual amount 

in the final product, not between consumption at a preliminary processing stage and theoretical quantities.” 

J.A. 28306. Commerce further found that Hyundai had 

failed to show cost differences as requested for the remaining four categories of costs identified by Hyundai. Id. 

Commerce also rejected Hyundai’s argument that the 

information provided was sufficient because “Commerce 

has previously relied on the very same information which

Commerce now considers unreliable.” Id. Commerce explained that in the earlier proceedings “Hyundai claimed 

that it was stopping the practice, however the shifting reoccurred in this segment.” Id. Further, Commerce found 

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HYUNDAI ELECTRIC v. US 13

reason in this administrative review to “take a closer look 

at [Hyundai’s] continuing practice and [its] attempt to correct the manipulation” because, in the earlier proceedings, 

unlike these, “Hyundai indicated the manipulation was 

limited to select parts of the SAP[] system only.” 

J.A. 28307. 

Commerce then turned to Hyundai’s cost reconciliation. Id. It found that Hyundai provided a cost reconciliation in response to Commerce’s initial questionnaire that 

“a) did not comply with the format requested and b) did not 

provide requested details.” J.A. 28309. Specifically, Commerce had asked Hyundai to “[l]ist each category of nonMUC separately” and reiterated that request in a supplemental questionnaire. Id. In the reconciliations Hyundai 

provided, however, Hyundai “did not provide details on 

each category of non-MUC” but instead “included a single 

line titled ‘Non-MUC from Transformer’ as a reconciling 

item with no explanation or support.” Id. Commerce found 

it was not until Hyundai’s case brief after the preliminary 

results that Hyundai explained that the single reconciling 

item included “1) non-subject merchandise; 2) third-country sales; 3) U.S. shipments that did not enter the United 

States during the POR; and, 4) home market shipments 

made outside the POR and window periods.” Id. Commerce rejected as “nonsensical” Hyundai’s argument that 

details on these [non-MUC] items are not relevant because 

Commerce would ultimately exclude them.” J.A. 28310. 

Commerce stated that it “routinely analyze[s] costs excluded from reporting and request[s] supporting documents and detailed explanations of why the cost is 

appropriate to exclude.” Id. Commerce also explained 

that, in a case such as this “where the respondent admits 

to manipulating its normal books and records, and the excluded costs include LPTs sold to third countries and merchandise made at the same facilities, it was even more 

crucial for Commerce to identify the detailed reconciling 

categories and related costs.” Id. 

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14 HYUNDAI ELECTRIC v. US

Commerce next found that Hyundai had not acted to 

the best of its ability, and thus an adverse inference was 

warranted. J.A. 28312. Commerce explained that “Hyundai failed to provide the basic information necessary to perform the dumping calculations as described in the 

preceding comments and to substantiate what the actual 

costs were for its transformers.” J.A. 28317. Hyundai’s 

failure to provide the basic information, Commerce found,

prevented Commerce from calculating an accurate antidumping margin and from reversing the effects of Hyundai’s cost shifting. Id. Commerce found that Hyundai’s 

failures to disclose the requested information rendered verification “meaningless,” and it rejected Hyundai’s argument that it should conduct verification to accept new 

information that would establish the accuracy of its data 

and resolve the issues stemming from its cost shifting, 

J.A. 28313. 

C 

On May 8, 2019, Hyundai sought judicial review in the 

U.S. Court of International Trade (“CIT”). Hyundai challenged certain aspects of Commerce’s final determination, 

including its (1) cancellation of verification, (2) application 

of facts otherwise available, and (3) use of an adverse inference. Hyundai Elec. & Energy Sys. Co. v. United States, 

466 F. Supp. 3d 1303, 1307 (Ct. Int’l Trade 2020). On August 4, 2020, the CIT issued a decision sustaining Commerce’s final results in their entirety. Id. The CIT first 

determined that substantial evidence supported Commerce’s decisions to rely on facts otherwise available and 

cancel verification. Id. at 1309–18. The CIT pointed to 

Commerce’s findings that Hyundai had failed to provide 

adequate information on product-specific costs and cost 

reconciliation. Id. 

Regarding Hyundai’s product-specific cost disclosures, 

the CIT noted Commerce’s finding that Hyundai had only 

provided adequate product specific cost information for one 

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HYUNDAI ELECTRIC v. US 15

of the six cost categories identified by Hyundai, namely 

other material costs. See id. at 1310–13. The CIT also 

pointed to Commerce’s finding that Hyundai had not 

tracked the shifting of silicon steel costs from one project to 

another and had not properly accounted for the differences 

between the amounts reported in the silicon steel processing reports and the engineering documents. Id. at 

1313–14. The CIT explained, as Commerce had found, 

Hyundai had also failed to adequately report product-specific costs on the four remaining cost categories identified 

by Hyundai; instead, Hyundai had provided sample and 

aggregate data. Id. at 1314–15. 

Regarding Hyundai’s cost-reconciliation disclosures, 

the CIT rejected Hyundai’s arguments that it had provided 

information satisfying Commerce’s requests and that Commerce did not ask Hyundai for the level of detail that Commerce contends it did. Id. at 1316–17. 

The CIT also determined that substantial evidence 

supported Commerce’s use of an adverse inference. Id. at 

1318–20. The CIT rejected Hyundai’s argument that Commerce, in determining that Hyundai had failed to comply

to the best of its ability, improperly overlooked the limitations of Hyundai’s cost accounting system. Id. at 1318–19. 

The CIT reasoned that, although Hyundai did not adequately report its cost-reconciliation and product-specific 

costs, that information “had to be available to Hyundai if it 

had accurately recaptured all costs—and indeed, in limited 

instances, Hyundai provided discrete samples detailing the 

adjustments for short periods of time and for limited categories of expenses.” Id. at 1319. 

Hyundai appealed. We have jurisdiction under 

28 U.S.C. § 1295(a)(5).

III

We apply the same standard of review applied by the 

CIT. Dupont Teijin Films USA, LP v. United States, 

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16 HYUNDAI ELECTRIC v. US

407 F.3d 1211, 1215 (Fed. Cir. 2005); SNR Roulements v. 

United States, 402 F.3d 1358, 1361 (Fed. Cir. 2005). Accordingly, we uphold a determination by Commerce unless 

it is “unsupported by substantial evidence . . . or otherwise 

not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i); 

Dupont, 407 F.3d at 1215; SNR Roulements, 402 F.3d at 

1361; see also Fujitsu Gen. Ltd. v. United States, 88 F.3d 

1034, 1038 (Fed. Cir. 1996). Substantial evidence means 

“such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion.” Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984)

(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 

477 (1951)). 

A 

Commerce’s decision to rely on facts otherwise available was supported by substantial evidence and not contrary 

to law. Section 1677e instructs Commerce to rely on facts 

otherwise available when, for example, “necessary information is not available on the record.” 19 U.S.C. 

§ 1677e(a)(1). Commerce explained that information pertaining to both product-specific costs and reconciliation 

was missing from the record and prevented it from understanding Hyundai’s cost shifting and determining an antidumping margin. Regarding Hyundai’s product-specific 

costs, Commerce itemized the specific information it 

needed from Hyundai in the second supplemental questionnaire. In response, Hyundai identified six categories of 

costs but only provided the requested level of detail for a 

single category, other materials. 

With respect to the silicon steel category, Hyundai 

failed to provide the details requested. Instead, it explained that it was “not possible to trace” cost shifting for 

silicon steel. Hyundai also attributed discrepancies between projected consumption and actual consumption to 

“yield losses.” But as Commerce pointed out, Hyundai’s 

comparison of the projected consumption to the silicon steel 

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HYUNDAI ELECTRIC v. US 17

processing reports would not result in a yield loss figure. 

And for the four remaining cost categories, Commerce observed that Hyundai had provided aggregate-level information that did not satisfy Commerce’s request. 

As for Hyundai’s cost reconciliations, Hyundai provided the same single line item twice, and only after Commerce’s preliminary results did Hyundai articulate what 

that line item included. Commerce’s determination that 

necessary information was missing from the record and its 

decision to rely on facts otherwise available were supported 

by substantial evidence. 

Hyundai argues that Commerce did not actually request details on each category of non-MUC for purposes of 

cost reconciliation. Appellant’s Br. 35. We are not persuaded. In its supplemental questionnaire, Commerce 

asked Hyundai to “[d]iscuss how you separated cost of sales 

on tab WS2 between MUC and non-MUC” and to “[d]emonstrate and provide supporting documentation for the MUC 

and non-MUC breakout for [transformers].” J.A. 16750. 

By their plain terms, these requests seek more detail than 

just the “category” of non-MUC as Hyundai contends.

Hyundai also contends that it in fact satisfied Commerce’s requests to fully demonstrate Hyundai’s cost shifting. Appellant’s Br. 37. But the record belies Hyundai’s 

argument. While there is no doubt that Hyundai provided 

certain information relating to its cost-shifting, we are not 

persuaded that Hyundai disclosed information that satisfied Commerce’s requests. Indeed, Hyundai provided the 

level of detail that Commerce requested with respect to one 

of the six cost categories, namely “other materials,” that 

Hyundai identified in its response to Commerce’s second 

supplemental questionnaire. Hyundai’s repeated disclosure of partial, aggregate, or sample information rather 

than complete and itemized information establishes that

Commerce’s decision to rely on facts otherwise available

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18 HYUNDAI ELECTRIC v. US

was reasonable and supported by substantial evidence. See 

19 U.S.C. § 1677e(a)(1). 

B 

Commerce’s decision to cancel verification was also 

supported by substantial evidence and not contrary to law. 

Section 1677m(e) provides that Commerce is not obligated 

to conduct verification when, for example, the information 

cannot be verified, the information is so incomplete as to be 

unreliable, or the interested party has not acted to the best 

of its ability to meet Commerce’s requirements. 19 U.S.C. 

§ 1677m(e). Such is the case here because Hyundai failed 

to provide the information necessary for Commerce’s analysis despite being given multiple opportunities to do so. 

Where necessary information is absent, Commerce need 

not conduct a verification in an attempt to obtain the missing information. AMS Assocs., Inc. v. United States, 

719 F.3d 1376, 1380 (Fed. Cir. 2013) (concluding that Commerce did not err in declining to conduct verification where, 

“[w]ithout verifiable information on those matters, Aifudi

was necessarily unable to carry its burden”); Qingdao SeaLine Trading Co. v. United States, 766 F.3d 1378, 1386 

(Fed. Cir. 2014) (“Commerce was unable to verify the index 

because Sea-line did not provide the correct source of the 

data.”). Indeed, as the CIT has explained, consistent with 

Commerce’s objective to verify the accuracy and completeness of submitted factual information under 19 C.F.R. 

§ 351.307(d), Commerce typically accepts new information 

at verification under limited circumstances, i.e., “only 

when: (1) the need for that information was not evident 

previously; (2) the information makes minor corrections to 

information already on the record; or (3) the information 

corroborates, supports, or clarifies information already on 

the record.’” Jinko Solar Co. v. United States, 

229 F. Supp. 3d 1333, 1356 (Ct. Int’l Trade 2017). Hyundai 

does not persuasively show that these circumstances are 

present. 

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Hyundai argues that Commerce erred in finding Hyundai’s cost information unverifiable because, in the past, 

Commerce conducted verifications on submitted information similar to that submitted by Hyundai in this case. 

Appellant’s Br. 29. We are not persuaded. We have rejected the notion that “Commerce is forever bound by its 

past practices.” Jiaxing Bro. Fastener Co. v. United States, 

822 F.3d 1289, 1299 (Fed. Cir. 2016). Instead, “each administrative review is a separate exercise of Commerce’s 

authority that allows for different conclusions based on different facts in the record.” Qingdao, 766 F.3d at 1387. 

Here, Commerce articulated sound reasons for seeking 

more detailed information regarding Hyundai’s cost-shifting in this administrative review than in prior reviews, including its observation that cost shifting had a larger 

impact on this administrative review. J.A. 28306–07. Such 

concerns support the reasonableness of Commerce’s requests for a greater amount of detail in this administrative 

review. 

C 

Commerce’s decision to use an adverse inference in selecting from among the facts otherwise available is also 

reasonable and supported by substantial evidence, and not 

contrary to law. The statement of administrative action on 

the Uruguay Round Agreements Act provides that “the 

purpose of the adverse inference provision is to encourage 

future cooperation and ensure that a respondent does not 

obtain a more favorable antidumping rate by failing to cooperate.” Mukand, Ltd. v. United States, 767 F.3d 1300, 

1307 (Fed. Cir. 2014) (citing H.R. Rep. No. 103–316, at 200 

(1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4199). An adverse inference is warranted where an interested party 

fails to act to the best of its ability in responding to Commerce’s request. 19 U.S.C. § 1677e(b)(1)(A); Nippon Steel 

Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 

2003). The “best of its ability” standard requires an interested party to “put forth its maximum effort to provide 

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20 HYUNDAI ELECTRIC v. US

Commerce with full and complete answers to all inquiries 

in an investigation.” Nippon, 337 F.3d at 1382; see also 

Mukand, 767 F.3d at 1306. The standard “does not condone inattentiveness, carelessness, or inadequate record 

keeping.” Nippon, 337 F.3d at 1382. “An adverse inference 

may not be drawn merely from a failure to respond, but 

only under circumstances in which it is reasonable for 

Commerce to expect that more forthcoming responses 

should have been made . . . .” Id. at 1383. 

We have held that an adverse inference may be appropriate where an interested party has been notified of a defect in its questionnaire response yet continues to provide 

a defective response. Maverick Tube Corp. v. United 

States, 857 F.3d 1353, 1361 (Fed. Cir. 2017) (“Borusan had 

already failed to provide the information requested in Commerce’s original questionnaire, and the supplemental questionnaire notified Borusan of that defect. § 1677m(d) does 

not require more.”). Hyundai did so here when, in response 

to Commerce’s second supplemental questionnaire, it only 

provided the requested level of detail for one out of six cost 

categories of product-specific cost information. It also did 

so when it twice provided the same single line item for nonMUC with respect to transformers in its responses pertaining to cost reconciliation. Given these circumstances, Commerce’s determination that Hyundai did not act to the best 

of its ability in responding to Commerce’s requests is supported by substantial evidence. 

Hyundai contends that it acted to the best of its ability 

in responding to Commerce’s requests. Hyundai states 

that it engaged in a “comprehensive effort to provide [Commerce] with” cost reconciliation information. Appellant’s 

Br. 48. Hyundai also contends that it could not have been 

more forthcoming in providing Commerce with productspecific cost tracing given the nature of its accounting. Id.

at 49. We are not persuaded. To the extent that the shortcomings of Hyundai’s responses are attributable to its record keeping, that alone does not avoid an adverse 

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HYUNDAI ELECTRIC v. US 21

inference. Nippon, 337 F.3d at 1382. That is all the more 

true where, as here, Commerce clearly and repeatedly requested the information and identified the defects in Hyundai’s responses, and the information that was ultimately 

missing from the record was foundational to Commerce’s 

ability to perform the antidumping duty calculations in a 

sound manner. See, e.g., Mukand, 767 F.3d at 1307 (“Product-specific information is a necessary element in the 

dumping analysis, and it is standard procedure for Commerce to request product-specific data in antidumping investigations. It was thus reasonable for Commerce to 

expect from Mukand more accurate and responsive answers to the questionnaire.”).

IV 

We hold that Commerce’s determinations to rely on 

facts otherwise available, to cancel verification, and to 

draw an adverse inference in selecting from among the 

facts otherwise available are supported by substantial evidence and otherwise not contrary to law. We therefore affirm the CIT’s decision sustaining Commerce’s final 

results. We have considered Hyundai’s remaining and arguments and find them unpersuasive. 

AFFIRMED

COSTS

No costs.

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