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, Washington, 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 Office, 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 Borusan 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, Circuit 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 sustaining of Commerce’s refusal to apply AFA to the government 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 countervailable subsidies to domestic exporters. Borusan I, 61 

F. Supp. 3d. at 1310–11. Commerce subsequently instituted 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 implicate 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 investigation (“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, Halkali, 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 transferred 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 production 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 purpose.” J.A. 1645. 

Commerce saw the matter differently. In a supplemental 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 Borusan 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 expenses 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 information 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 producing 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 Gemlik 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 investigation and “to respond to all reasonable requests for information.” 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 response to the supplemental questionnaire. Instead, in its 

preliminary determination, and again in its postpreliminary 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 evidence 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 determination 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 outstanding 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. Specifically, 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 production of [HRS],” as well as data relating to the “percentage 

of domestic consumption accounted for by domestic production,” 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 questions. See J.A. 4401–03. In responding to another question, 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 documents that appeared to describe government aid to the 

steel industry. See J.A. 16724–25. Accordingly, Commerce 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 conducted “on condition of confidentiality.” J.A. 16724. Moreover, 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, Commerce 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; Countervailing 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 Erdemir “accounts for the majority of HRS production in 

Turkey.” Id. at 24. Because domestic production accounted for a majority of total supply and Erdemir accounted 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 Preamble, 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 independent 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 Commerce’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 Commerce’s analysis to ‘certain circumstances’ when ‘a substantial portion of the market’ is at issue,” but “does not 

suggest the same constraint when the government ‘constitutes 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 being “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 determined 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 evidence 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 crossappealed. 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 substantial 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 informed 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 cooperated 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 questionnaire 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 Commerce’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 information. 

We agree with Maverick and the United States that 

substantial evidence supports Commerce’s decision to 

apply AFA. Commerce requested information from Borusan, 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 administrative 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 answers 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, Commerce’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 information relating to the Halkali and Izmit locations, and 

that it did not provide that information. Moreover, although Borusan challenged before the Trade Court whether 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 required it only to provide the information or explain why it 

was unable to do so, Borusan did neither. Borusan admits it did not provide the information, and the explanation of its difficulties does not constitute a statement that 

it was unable to provide the information. 

Borusan’s invocation of § 1677m(c) in its supplemental 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 notified 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 obligations under section 1677m(d) when it issued a supplemental questionnaire specifically pointing out and 

requesting clarification of [the] deficient responses.”). 

Accordingly, Commerce’s application of AFA to Borusan is supported by substantial evidence and in accordance 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 determination 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 domestic production of HRS was greater than the shares calculated 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 market, 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 original determination of distortion was not supported by 

substantial evidence. They aver that there was no evidence 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 portion 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 domestic 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 circumstances which would actually suggest distortion. See id.

at 24. Although it does appear possible that GOT controlled 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, Toscelik, and the Trade Court that Commerce applied what 

amounted to a per se rule of market distortion after finding GOT controlled a substantial portion of the market, 

despite the Preamble’s language to the contrary. Therefore, Commerce’s original finding was not supported by 

substantial evidence. 

Maverick next argues that Commerce erred on remand by not applying AFA to GOT. Maverick contends 

that because GOT failed to cooperate fully with Commerce’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 determination 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 information, 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 documents could not be disclosed due to confidentiality agreements. 

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.