United States Court of Appeals 

for the Federal Circuit ______________________ 

MUELLER COMERCIAL DE MEXICO, S. DE R.L. 

DE C.V. AND SOUTHLAND PIPE NIPPLES CO., 

INC.,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee,

AND

TMK IPSCO TUBULARS AND

ALLIED TUBE AND CONDUIT,

Defendants-Appellees,

AND

UNITED STATES STEEL CORPORATION,

Defendant-Appellee.

______________________ 

2013-1391

______________________ 

Appeal from the United States Court of International 

Trade in No. 11-CV-0319, Judge Leo M. Gordon.

______________________ 

Decided: May 29, 2014

______________________ 
2 MUELLER COMERCIAL DE MEXICO v. US

YOHAI BAISBURD, White & Case LLP, of Washington, 

DC, argued for plaintiffs-appellants. With him on the 

brief were DAVID E. BOND, JAY C. CAMPBELL and TINGTING KAO. 

DOUGLAS G. EDELSCHICK, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendantappellee United States. With him on the brief were 

STUART F. DELERY, Assistant Attorney General, JEANNE 

E. DAVIDSON, Director, and FRANKLIN E. WHITE, JR., 

Assistant Director. Of counsel was NATHANIEL J.

HALVORSON, Attorney, Office of the Chief Counsel for 

Import Administration, United States Department of 

Commerce, of Washington, DC. 

ROGER B. SCHAGRIN, Schagrin Associates, of Washington, DC, argued for defendants-appellees TMK IPSCO 

Tubulars, et al. With him on the brief was JOHN W.

BOHN. 

ELLEN J. SCHNEIDER, Skadden Arps, Slate, Meagher 

& Flom LLP, of Washington, DC, argued for defendantappellee United States Steel Corporation. With her on 

the brief were ROBERT LIGHTHIZER and JEFFREY D.

GERRISH. Of counsel were JAMES C. HECHT and LUKE A.

MEISNER. 

______________________ 

Before NEWMAN, DYK, and TARANTO, Circuit Judges.
MUELLER COMERCIAL DE MEXICO v. US 3

DYK, Circuit Judge. 

Plaintiffs Mueller Comercial de Mexico, S. de R.L. de 

C.V., and Southland Pipe Nipples Company, Inc.1 (collectively, “Mueller”) appeal from a decision of the Court of 

International Trade sustaining the United States Department of Commerce’s (“Commerce”) antidumping 

determination. We vacate and remand. 

BACKGROUND

The Tariff Act of 1930 (the “Act”), as amended, permits Commerce to levy antidumping duties on goods “sold 

in the United States at less than . . . fair value.” 19 

U.S.C. § 1673. Antidumping duty orders are issued for 

imported merchandise that is sold in the United States 

below its fair value and materially injures or threatens to 

injure a domestic industry. Id. An antidumping duty 

reflects the amount by which the “normal value” of a 

product (typically, the home market price—the price of 

the merchandise when sold for consumption in the exporting country), 19 U.S.C. § 1677b(1), exceeds the “export 

price” of the merchandise. 19 U.S.C. §§ 1673, 1677(35)(A). 

This difference is called the dumping margin. The imposition of the antidumping duty, equal to the dumping 

margin, is intended to ensure that merchandise is not sold 

in the United States below its fair value.

Commerce periodically reviews and reassesses antidumping duties imposed in earlier proceedings. 19 U.S.C. 

§ 1675(a). On November 2, 1992, Commerce published an

antidumping duty order on certain circular welded non1 Southland Pipe Nipples Company, Inc. is 

Mueller’s importer-of-record for direct sales in the United 

States and is a wholly-owned subsidiary of Mueller Industries, Inc.

 
4 MUELLER COMERCIAL DE MEXICO v. US

alloy steel pipe from Mexico. On November 2, 2009, 

Commerce published a notice of opportunity to request an 

administrative review of the antidumping duty order. 

Commerce received requests for administrative review 

from appellant Mueller; Tuberia Nacional, S.A. de C.V. 

(“TUNA”); and Ternium Mexico, S.A. de C.V. (“Ternium”), 

and from defendant-appellees Allied Tube and Conduit 

Corporation and TMK IPSCO Tubulars. 

On December 23, 2009, Commerce initiated an antidumping administrative review concerning the period 

spanning from November 1, 2008, to October 31, 2009, 

issuing questionnaires to three mandatory respondents: 

(1) Mueller, an exporter, which purchased the majority of 

its subject merchandise from TUNA and Ternium, (2) 

TUNA and (3) Ternium, both producers of subject merchandise. TUNA’s review was rescinded (because there 

were no direct shipments), and Ternium opted not to 

participate in its own margin calculation. As a result, 

Commerce drew an adverse inference against Ternium

pursuant to 19 U.S.C. § 1677e(b), assigning an adverse 

facts available (“AFA”) dumping margin of 48.33 percent, 

“which is the highest calculated transaction-specific 

margin from the most recently-completed administrative 

review of this antidumping duty order in which a rate was 

calculated.” J.A. 63 (Preliminary Results). Ternium’s

dumping margin is not at issue in this appeal. 

For Commerce to calculate Mueller’s antidumping 

rate, it was required to determine the difference between 

the “normal value” of Mueller’s goods (typically “home 

market” price) and the “export price” at which Mueller’s

goods were sold in the United States. 19 U.S.C. 

§§ 1677(35)(A), 1677b(a). The “normal value” is ordinarily 

the price at which the goods were first sold for consumption in the exporting country—in this case, in Mexico. Id. 

§ 1677b(a)(1)(B)(i). Here, Mueller had sufficient volume 

of home market sales such that they could be used to 
MUELLER COMERCIAL DE MEXICO v. US 5

calculate “normal value.” See id. § 1677b(a)(1)(B)(ii)(II). 

However, where an exporter’s home market price is less 

than the cost of production for the goods it sells, Commerce “may” disregard the below cost sales to calculate 

“normal value.” Id. § 1677b(b)(1). Therefore, Commerce 

must determine the cost of production of the subject 

merchandise. Id. § 1677b(b)(3). Such production costs are 

normally “calculated based on the records of the exporter 

or producer of the merchandise, if such records are kept in 

accordance with the generally accepted accounting principles of the exporting country . . . and reasonably reflect 

the costs associated with the production and sale of the 

merchandise.” Id. § 1677b(f)(1)(A). If the cost of production is greater than the home market price, home market 

sales below production cost may be disregarded in calculating the normal value.2 Id. §§ 1677b(b)(1)(A); 

1677b(b)(2)(C). 

Although Mueller fully cooperated with Commerce’s 

review, Mueller did not possess all of the production cost 

information necessary to calculate its antidumping margin. See 19 U.S.C. § 1677b(b)(3). To calculate cost of 

production, Commerce requested data directly from 

Mueller’s two principal suppliers, TUNA and Ternium. 

TUNA fully cooperated with the data requests, reporting cost of production on a product-specific basis. However, Ternium did not “provide detailed product-specific 

calculations that allocate[d] costs based on product dimensions.” J.A. 47 (Memorandum from Mark Flessner, 

Case Analyst, Dep’t of Commerce, to Richard Weible, 

Office Director, Dep’t of Commerce, Certain Circular 

2 Production cost data is also used to calculate “constructed value” in lieu of home market sales. 19 U.S.C. 

§ 1677b(e). 

 
6 MUELLER COMERCIAL DE MEXICO v. US

Welded Non-Alloy Steel Pipe from Mexico: Use of [AFA] 

for Final Results 2 (June 13, 2011)) (“AFA Mem.”) (internal quotation marks omitted). Ternium stated that it did 

not provide the data because it was not “readily available.” As a result, Commerce did not have the data necessary to calculate margins that took into account cost 

differences associated with the different physical characteristics of the goods. 

For its preliminary analysis, Commerce simply relied 

on the submitted data and calculated a weighted-average 

dumping margin of 4.81 percent for Mueller. But because 

Ternium did not submit necessary cost data before the 

time for a final determination, in making the final calculations, Commerce used “facts otherwise available” to 

calculate Mueller’s margin under 19 U.S.C. § 1677e(a) of 

the statute. Specifically, Commerce concluded that the 

production costs of the goods Mueller acquired from 

Ternium (data that was unavailable) were related to 

acquisition costs (data that was available). Commerce 

identified the three sales transactions between TUNA and

Mueller made at the greatest discount to Mueller—where 

Mueller’s acquisition cost was the furthest below TUNA’s 

production cost. Commerce then inferred that all of

Ternium’s pipe that was sold to Mueller involved this

discount for acquisition cost. This enabled Commerce to 

calculate Ternium’s cost of production from Mueller’s cost 

of acquisition from Ternium. Although there were other 

sales transactions between TUNA and Mueller that were 

not discounted as significantly, Commerce chose not to 

use that data. In its Final Results, Commerce used data 

from the three transactions to calculate a new weightedaverage dumping rate for Mueller of 19.81 percent.

On August 22, 2011, Mueller filed suit in the Court of 

International Trade (“Trade Court”) seeking to overturn 

Commerce’s Final Results, noting that Mueller had fully 

cooperated and alleging that Commerce’s application of 
MUELLER COMERCIAL DE MEXICO v. US 7

“Ternium’s AFA to its calculation of the margin for 

Mueller,” despite Mueller’s full cooperation with Commerce’s requests, was improper. J.A. 197. Mueller argued that, instead, Commerce should have calculated 

production costs using the entire TUNA data set.3 The 

Trade Court found that Commerce’s application of facts 

available was reasonable, and sustained the Final Results. Mueller appealed. We have jurisdiction pursuant 

to 28 U.S.C. § 1295(a)(5). 

DISCUSSION

I 

As discussed, Mueller’s antidumping rate was based 

on the difference between the “normal value” of the subject merchandise (typically, the “home market” price) and 

the “export price” of the goods sold in the United States. 

See 19 U.S.C. § 1677(35)(A). But Mueller’s data alone 

could not be used to determine whether its home market 

sales were below the cost of production for the goods. 

Commerce requested data from Mueller’s two primary 

suppliers, TUNA and Ternium, to calculate the cost of 

production for the subject merchandise. See 19 U.S.C. 

§ 1677b(b)(3). Ternium did not provide product-specific 

cost data that would enable Commerce to calculate Ternium’s cost of production for each product, failing to account 

for different costs based on nominal pipe size and pipe 

wall thickness. Therefore, Commerce did not have sufficient information to calculate Mueller’s antidumping rate. 

When Commerce is missing necessary data, the statute provides two options to secure data that can be used 

3 Mueller argued alternatively that Commerce 

should have used Mueller’s acquisition costs from Ternium or extrapolated from Ternium’s limited cost data.

 
8 MUELLER COMERCIAL DE MEXICO v. US

as a substitute for the missing information. See 19 U.S.C. 

§ 1677e. The first is “facts otherwise available.” The 

statute provides: 

(a) In general 

If— 

(1) necessary information is not available 

on the record, or

(2) an interested party or any other person— 

(A) withholds information that has 

been requested by [Commerce] 

under this subtitle,

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

the form and manner requested . . . 

[Commerce] shall . . . use the facts otherwise 

available in reaching the applicable determination 

under this subtitle.

19 U.S.C. § 1677e(a) (emphases added). The second is the 

“adverse facts available” approach. In this respect, the 

statute provides: 

(b) Adverse Inferences

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], [Commerce], in reaching the 

applicable determination under this subtitle, may 

use an inference that is adverse to the interests of 

that party in selecting from the facts otherwise 

available. Such adverse inference may include reliance on information derived from— 
MUELLER COMERCIAL DE MEXICO v. US 9

(1) the petition,

(2) a final determination in the investigation under this subtitle,

(3) any previous review under section 1675 

of this title or determination under section 

1675b of this title, or

(4) any other information placed on the

record.

19 U.S.C. § 1677e(b) (emphasis added). 

These two subsections have different purposes. Subsection 1677e(a) (“subsection (a)”) may be used whether or 

not any party has failed to cooperate fully with the agency 

in its inquiry. See Zhejiang DunAn Hetian Metal Co. v. 

United States, 652 F.3d 1333, 1346 (Fed. Cir. 2011) 

(“‘[T]he mere failure of a respondent to furnish requested 

information—for any reason—requires Commerce to 

resort to other sources of information to complete the 

factual record . . . .’” (emphasis added) (quoting Nippon 

Steel v. United States, 337 F.3d 1373, 1381 (Fed. Cir. 

2003))). In contrast, subsection 1677e(b) (“subsection (b)”)

authorizes an inference adverse to an interested party 

when “Commerce makes the separate determination that 

[the party] has failed to cooperate by not acting to the best 

of its ability.” Id. (quoting Nippon Steel, 337 F.3d at 

1381) (internal quotation marks omitted). In this case, 

Mueller is a cooperating party, while Ternium is not. 

II

Initially we note that there is no contention here that 

Commerce, acting primarily under subsection (a) in 

setting a margin for Mueller, erred in using TUNA’s data 

as a surrogate for Ternium’s missing data. Mueller’s 

primary complaint is that Commerce limited its analysis 

to a small and unfavorable subset of the TUNA data. As 

stated above, Commerce used the three highest-margin 
10 MUELLER COMERCIAL DE MEXICO v. US

transactions instead of taking the total number of transactions from the TUNA cost of production data, which 

resulted in a higher normal value, and therefore, a higher 

dumping margin. Mueller argues Commerce arbitrarily 

cherry-picked the data to achieve this higher dumping 

margin.

We separately address the two rationales that Commerce used to justify its approach. Commerce relied on 

the two rationales in combination, not on either one as an 

independent ground. If one fails, as we conclude it does, 

Commerce’s ruling cannot stand. SEC v. Chenery Corp., 

332 U.S. 194, 196–97 (1947).

First, Commerce concluded that the use of the adverse 

inference to calculate Ternium’s surrogate production cost 

actually yielded the most accurate calculation of Mueller’s 

antidumping rate.4 

4 See J.A. 40 (Memorandum from Christian Marsh, 

Deputy Assistant Sec’y, Dep’t of Commerce, to Ronald K. 

Lorentzen, Deputy Assistant Sec’y, Dep’t of Commerce, 

Issues and Decision Memorandum for Final Results of 

Antidumping Duty Administrative Review: Certain 

Circular Welded Non-Alloy Steel Pipe from Mexico 16 

(June 13, 2011)) (“Decision Memorandum”) (“[Commerce] 

has selected from the facts otherwise available, the best 

information to use in place of Ternium’s withheld data.” 

(emphasis added)); J.A. 44 (Decision Mem. 20) (“The 

Department considers that if it ignores the fact that 

Ternium chose to withhold necessary information and 

fails to apply an adverse inference in the selection of the 

facts available, the resulting dumping margin would not 

reflect accurately the rate at which Muel[l]er’s sales of 

merchandise produced by Ternium was sold at less than 

normal value.” (emphasis added)).

 
MUELLER COMERCIAL DE MEXICO v. US 11

Mueller argues that this rationale is arbitrary and 

capricious or not supported by substantial evidence. We 

agree. 

There is no support for Commerce’s claim that using 

the three least-favorable TUNA transactions would 

produce the most accurate dumping margin for Mueller. 

Even calculating Mueller’s dumping margin based on the 

TUNA transactions where Mueller purchased the subject 

merchandise at below cost prices showed that Mueller 

received an average discount that was approximately half 

of the Commerce rate. An analysis based on all of the 

TUNA data showed that Mueller received, as a weighted 

average, less than a ten percent discount on the subject 

merchandise. Finally, an unweighted average of all the 

TUNA data showed that overall, Mueller’s acquisition 

costs were higher than TUNA’s production costs. Commerce has not explained why using a larger data set 

would produce a less accurate dumping margin. Commerce’s rationale that Ternium would have cooperated if 

disclosing its actual costs to Commerce had been favorable to its interests does not support a conclusion that the 

particular TUNA data Commerce ultimately chose to rely

on accurately estimated those costs. There is no showing 

that Ternium, in the hypothesized benefit calculus, could 

have anticipated that, if it chose non-disclosure of its 

actual costs, Commerce would rely on TUNA’s three least 

favorable transactions to calculate Mueller’s rate; indeed, 

there is no showing that Ternium would even have known 

what TUNA’s data contained, given Commerce’s obligation to keep TUNA’s data confidential. 19 C.F.R. 

§§ 351.105, 351.303–06. Therefore, we find that Commerce’s accuracy rationale for its calculation of Mueller’s 

antidumping rate was unsupported by substantial evidence. 

Because Commerce’s calculation of Mueller’s rate relied in part on this accuracy rationale, this decision must 
12 MUELLER COMERCIAL DE MEXICO v. US

be set aside. There is no contention that the use of the 

particular TUNA data relied on by Commerce was somehow required by the antidumping statute. See, e.g., ICC 

v. Bhd of Locomotive Eng’rs, 482 U.S. 270, 283 (1987); 

Koyo Seiko Co. v. United States, 95 F.3d 1094, 1101 (Fed. 

Cir. 1996). However, a reversal is also not appropriate 

because, as we conclude below, Commerce’s second rationale provides a possible factor supporting the rate that 

Commerce adopted.

Commerce’s second rationale rested on policy considerations unrelated to accuracy of the determination to be 

made on the already-developed record. Commerce found 

that Mueller could and should have induced Ternium’s 

cooperation by refusing to do business with Ternium, and 

Ternium would not be sufficiently deterred if Mueller 

were unaffected by Ternium’s non-cooperation, stating 

that Ternium could otherwise evade its antidumping rate 

by funneling its goods through Mueller.5 We conclude 

5 See J.A. 42–43 (Decision Mem. 18–19) (“[W]e seek

to induce compliance and to ensure that Ternium does not 

benefit from its non-compliance. As a general matter, 

companies that choose to do business with uncooperative 

parties may also be impacted.”); J.A. 43–44 (Decision 

Mem. 19–20) (“[I]f we were to accept Mueller’s arguments, 

the subject merchandise produced and exported by Ternium would be subject to a total adverse facts available rate 

of 48.33, while the Ternium-produced merchandise exported by Mueller would be subject to the much lower 

weighted-average rate of Mueller, such as the rate of 4.81 

from the Preliminary Results. Accordingly, Ternium 

could continue to produce and sell the subject merchandise for prices less than its normal value to the U.S. 

market by directing it[s] merchandise through Mueller, 

 
MUELLER COMERCIAL DE MEXICO v. US 13

that Commerce may rely on such policies as part of a 

margin determination for a cooperating party like 

Mueller, as long as the application of those policies is 

reasonable on the particular facts and the predominant

interest in accuracy is properly taken into account as well. 

This analysis is justified and required, even if Commerce is viewed as acting entirely under subsection (a) in 

determining Mueller’s rate. But Mueller argues that 

because these adverse inferences and related rationales

are the same as those that support the use of AFA under 

subsection (b), they cannot support a “facts otherwise 

available” determination under subsection (a). Mueller is 

mistaken. Subsection (a) does not provide for the specific 

facts that should be used as a gap-filling mechanism. The 

statute on its face does not preclude Commerce from 

relying on the same considerations under subsection (a) 

for an AFA determination as used under subsection (b). 

Under Chevron, Commerce’s interpretation of subsections 

(a) and (b) otherwise governs as long as it is reasonable

and a permissible statutory construction. United States v. 

Eurodif S.A., 555 U.S. 305, 316 (2009); Timken Co. v. 

United States, 354 F.3d 1334, 1342 (Fed. Cir. 2004). 

Consideration under subsection (a) of facts found or 

rationales applicable under subsection (b), in the way 

Commerce may be viewed as having done here, passes 

muster under Chevron. 

This result is wholly consistent with our precedents 

applying subsection (b) itself, which is properly directed to

non-cooperating parties. This Court’s decision in F.lli De 

Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 

216 F.3d 1027, 1032 (Fed. Cir. 2000), required that, even 

where it would have no obligation to ever provide cost of 

production information, under Mueller’s argument.”). 

 
14 MUELLER COMERCIAL DE MEXICO v. US

for a non-cooperating party, subsection (b) be applied to 

arrive at “a reasonably accurate estimate of the respondent’s actual rate, albeit with some built-in increase intended as a deterrent to noncompliance.” All the more so 

for a cooperating party, for which the equities would 

suggest greater emphasis on accuracy in the overall mix. 

Moreover, this Court’s decision in Changzhou made clear 

that, in the case of a cooperating party, Commerce cannot 

confine itself to a deterrence rationale and also must

carry out a case-specific analysis of the applicability of 

deterrence and similar policies. Changzhou, 703 F.3d at 

1379. And those principles were in no way questioned in 

Fine Furniture (Shanghai) Ltd. v. United States, No. 

2013-1158, 2014 WL 1613883, at *4 (Fed. Cir. Apr. 23, 

2014), which simply rejected a contention that a countervailing duty rate for a cooperating importer could not be 

based on adverse inferences drawn against a noncooperating foreign country (about the country’s subsidizing of an input into the importer’s product). Fine Furniture involved no issue about the application of the De 

Cecco and Changzhou analysis to the selection of the 

particular rate for the cooperating party.

Contrary to Mueller’s contention, consideration of various factors in calculating the rate of a cooperating party

is not precluded by Changzhou. In Changzhou, Commerce concluded it was necessary to use an adverse rate 

against a cooperating party because other rates “would 

not be sufficiently adverse as to effectuate the purpose of 

the facts available rule to induce respondents to provide 

[Commerce] with complete and accurate information”—in 

other words, they would not have sufficient deterrent 

effect. Changzhou, 701 F.3d at 1378 (internal quotations 

omitted). But there was no support in the statute for 

imposing any deterrent effect on cooperating parties in 

that case. Id. at 1379. The cooperating parties could not 

have induced the non-cooperating party to provide com-
MUELLER COMERCIAL DE MEXICO v. US 15

plete and accurate information, thus “there was no need 

or justification for deterrence.” Id. Nor was there a claim 

that the non-cooperating party was likely to evade its own 

antidumping duty through the cooperating parties. Id. 

We concluded that it was unreasonable to rely on a deterrence rationale. We reversed and remanded to Commerce 

to “act non-arbitrarily” in calculating the separate rate for 

the cooperating parties. Id. 

There is potentially greater support for Commerce’s 

use of an evasion or inducement rationale in this case 

than in Changzhou. While the cooperating plaintiffs in 

Changzhou did not have any mechanism to force the noncooperating party’s cooperation (since the cooperating 

parties did not purchase goods from the non-cooperating 

party), id. at 1370–71, Mueller had an existing relationship with supplier Ternium. Therefore, Mueller could 

potentially have refused to do business with Ternium in 

the future as a tactic to force Ternium to cooperate. In 

fact, the relationship between Mueller and Ternium is 

similar to the relationship between the importer and 

exporter in KYD, Inc. v. United States, 607 F.3d 760, 768 

(Fed. Cir. 2010). There, King Pac and KYD had an existing relationship as importer-exporter, and this court 

found that KYD could have used this relationship to 

induce King Pac to cooperate. Id. (“In the aggregate, 

however, the importers’ exposure to enhanced antidumping duties seems likely to have the effect of either directly 

inducing cooperation from the exporters with whom the 

importers deal or doing so indirectly, by leaving uncooperative exporters without importing partners who are 

willing to deal in their products.”); see also Fine Furniture, 2014 WL 1613883, at *7 (“Fine Furniture is a company within the country of China, benefitting directly 

from the subsidies the government of China may be 

providing [and] a remedy that collaterally reaches Fine 

Furniture has the potential to encourage the government 
16 MUELLER COMERCIAL DE MEXICO v. US

of China to cooperate so as to not hurt its overall industry.”). So too with Mueller and Ternium—if Mueller and 

other entities were not willing to export goods produced 

by Ternium, this would potentially induce Ternium to 

cooperate. On the other hand, if the cooperating entity 

has no control over the non-cooperating suppliers, a 

resulting adverse inference is potentially unfair to the 

cooperating party. SKF USA Inc. v. United States, 630 

F.3d 1365, 1375 (Fed. Cir. 2011).

In addition, as Commerce recognized, there is the possibility that Ternium could evade its own AFA rate of 

48.33 percent by exporting its goods through Mueller if 

Mueller were assigned a favorable dumping rate. In this 

respect, too, this case is different from Changzhou and 

similar to KYD. We noted there that “KYD’s argument 

would allow an uncooperative foreign exporter to avoid 

the adverse inferences permitted by statute simply by 

selecting an unrelated importer, resulting in easy evasion 

of the means Congress intended for Commerce to use to 

induce cooperation with its antidumping investigations.” 

KYD, 607 F.3d at 768. Mueller argued that there was no 

evidence that Mueller was likely to act on Ternium’s 

behalf and reasoned that Commerce could investigate 

such false exports and impose Ternium’s own antidumping rate on them. See, e.g., Tung Mung Dev. Co. v. United 

States, 354 F.3d 1371, 1381 n.10 (Fed. Cir. 2004). But the 

fact that Commerce has alternative methods for addressing evasion does not mean that the particular chosen 

method is arbitrary. Commerce can use all of the methods provided in the Act for enforcement of the antidumping provisions. 

III

In summary, on the remand, Commerce should recalculate Mueller’s rate. In doing so, Commerce must have 

as its primary objective the calculation of an accurate rate 
MUELLER COMERCIAL DE MEXICO v. US 17

for Mueller—as we said in Changzhou—“[w]e find no 

support in our caselaw or the statute’s plain text for the 

proposition that deterrence, rather than fairness or accuracy, is the overriding purpose of the antidumping statute 

when calculating a rate for a cooperating party.” 701 F.3d 

at 1378 (internal quotation marks omitted). But we do 

not foreclose Commerce from also relying on the policy 

considerations that motivated the decision under review—

namely, its desire to encourage Mueller to induce Ternium’s cooperation and Commerce’s concern that calculating too low a rate for Mueller might allow Ternium to 

evade its own dumping duty by channeling sales through 

Mueller. 

Commerce must take into account that Mueller itself 

was a cooperating party and that Commerce’s inducement/evasion approach to Mueller’s rate calculation could 

discourage Mueller’s own cooperation. See id. To the 

extent that Commerce chooses to rely on inducement/evasion considerations, its approach must be reasonable. We do not today decide whether relying on 

inducement/evasion rationales to calculate Mueller’s rate 

would be reasonable in the circumstances of this case. We 

only hold that the statute does not preclude reliance on 

inducement or evasion considerations in calculating 

Mueller’s rate, and that such an approach is not foreclosed by Changzhou. We leave it to Commerce in the 

first instance to determine the relevant considerations 

and balance the need to calculate an accurate rate for 

Mueller and Mueller’s status as a cooperating party with 

other potentially relevant concerns. 

Finally, we wish to be clear that under subsection (b) 

we do not bar Commerce from drawing adverse inferences 

against a non-cooperating party that have collateral 

consequences for a cooperating party. Where an adverse 

inference is used to calculate the rate of a non-cooperating 

party that rate may sometimes be used in calculating the 
18 MUELLER COMERCIAL DE MEXICO v. US

rate of a cooperating party and thus have collateral 

consequences for the cooperating party. KYD, 607 F.3d at 

768. That is not the situation here. Commerce drew two 

adverse inferences against Ternium. The first adverse 

inference was used to calculate Ternium’s own antidumping rate of 48.33 percent under subsection (b). The second 

adverse inference against Ternium, used to approximate 

Ternium’s cost of production, was not used in calculating 

Ternium’s rate, but only in calculating Mueller’s rate. So 

too this is unlike Fine Furniture where the government of 

China provided a subsidy to Fine Furniture. Fine Furniture, 2014 WL 1613883, at *5–6. China was an “interested 

party” as defined by the statute and the adverse inference 

applied was “adverse to the interests of that party.” 19 

U.S.C. § 1677(9)(B); see also Fine Furniture, 2014 WL 

1613883, at *4. The use of an adverse inference was 

contrary to the interest of China because it directly offset 

the subsidy that China provided. Here, there is no direct 

adverse effect on Ternium from using an adverse inference as facts otherwise available in computing Mueller’s 

dumping margin. Under these circumstances Commerce 

must proceed in the manner we have described.

VACATED AND REMANDED

COSTS

No costs.