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


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