Corinth Pipeworks Pipe Industry Sa, Cpw America Co. v. United States, the American Line Pipe Producers Association Trade Committee

United States Court of Appeals
for the Federal Circuit
______________________
CORINTH PIPEWORKS PIPE INDUSTRY SA, CPW
AMERICA CO.,
Plaintiffs-Appellants
v.
UNITED STATES, THE AMERICAN LINE PIPE
PRODUCERS ASSOCIATION TRADE COMMITTEE,
Defendants-Appellees
______________________
2023-2094
______________________
Appeal from the United States Court of International
Trade in No. 1:22-cv-00063-LMG, Senior Judge Leo M.
Gordon.
______________________
Decided: September 8, 2025
______________________
BRYAN P ATRICK CENKO, Mowry & Grimson, PLLC,
Washington, DC, argued for plaintiffs-appellants. Also
represented by J ILL CRAMER , J EFFREY S. G RIMSON, Y IXIN
L I, K RISTIN HEIM M OWRY , SARAH WYSS .
ASHLEY AKERS , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee United States. Also
represented by BRIAN M. BOYNTON, P ATRICIA M.
MCCARTHY , L OREN MISHA P REHEIM ; CHRISTOPHER K IMURA,
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CORINTH PIPEWORKS PIPE INDUSTRY SA v. US 2
Office of the Chief Counsel for Trade Enforcement & Com-
pliance, United States Department of Commerce, Wash-
ington, DC.
T IMOTHY C. BRIGHTBILL , Wiley Rein, LLP, Washington,
DC, argued for defendant-appellee American Line Pipe
Producers Association Trade Committee. Also represented
by P AUL J. COYLE, L AURA EL -SABAAWI, ELIZABETH S. L EE .
______________________
Before REYNA, T ARANTO, and STARK, Circuit Judges.
REYNA, Circuit Judge.
Appellants challenge the judgment of the United
States Court of International Trade that sustained the fi-
nal determination of the United States Department of
Commerce in the first annual administrative review of an
antidumping duty order covering certain large diameter
welded pipe from Greece. Appellants assert that Com-
merce erred when it rejected the information they submit-
ted during the review and instead used “facts otherwise
available” under 19 U.S.C. § 1677e and employed an “ad-
verse inference” in reaching its final determination. For
the reasons set forth below, we affirm.
BACKGROUND
I. Antidumping Investigation and Order
In February 2018, the United States Department of
Commerce (“Commerce”) initiated antidumping duty in-
vestigations on imports of certain large diameter welded
pipe from Greece and several other countries. Large Diam-
eter Welded Pipe from Canada, Greece, India, the People’s
Republic of China, the Republic of Korea, and the Republic
of Turkey: Initiation of Less-Than-Fair-Value Investiga-
tions, 83 Fed. Reg. 7154 (Dep’t of Commerce Feb. 20, 2018).
The investigation involving exports from Greece resulted
in a final affirmative determination of sales at less than
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CORINTH PIPEWORKS PIPE INDUSTRY SA v. US 3
fair value, i.e., dumping. Large Diameter Welded Pipe from
Greece: Final Determination of Sales at Less Than Fair
Value, 84 Fed. Reg. 6364 (Dep’t of Commerce Feb. 27,
2019). As a result, Commerce published an antidumping
duty order covering large diameter welded pipe from
Greece. Large Diameter Welded Pipe From Greece:
Amended Final Affirmative Antidumping Determination
and Antidumping Duty Order, 84 Fed. Reg. 18769 (Dep’t of
Commerce May 2, 2019) (“Antidumping Duty Order”).
In the Antidumping Duty Order, appellants Corinth
Pipeworks Pipe Industry SA, the sole producer and ex-
porter of the pipe at issue, and CPW America Co., its U.S.
subsidiary and U.S. importer (collectively, “Corinth”), were
assessed an antidumping duty margin of 10.26% ad val-
orem. 84 Fed. Reg. at 18771; see Corinth Pipeworks Pipe
Indus. SA v. United States, 633 F. Supp. 3d 1314, 1317
(Ct. Int’l Trade 2023) (“Trade Court Decision”).
II. Administrative Annual Review
In July 2020, Commerce published a notice of initiation
of administrative reviews concerning various antidumping
duty and countervailing duty orders. Initiation of Anti-
dumping and Countervailing Duty Administrative Re-
views, 85 Fed. Reg. 41540 (Dep’t of Commerce July 10,
2010). The notice stated that it would review the large di-
ameter welded pipe from Greece subject to the Antidump-
ing Duty Order. Id. at 41543. Commerce identified
Corinth as the sole respondent in the review and deter-
mined the period of review as April 19, 2019, to April 30,
2020. Id.
A. Initial Questionnaire
Shortly after initiation, Commerce issued Corinth an
initial antidumping questionnaire. J.A. 44–210. Com-
merce requested per-unit cost of production and con-
structed value costs based on “actual costs” during the
period of review, as recorded under Corinth’s cost
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CORINTH PIPEWORKS PIPE INDUSTRY SA v. US 4
accounting system. J.A. 152. Commerce instructed Cor-
inth that its per-unit cost of production and constructed
value costs “must reconcile to the actual costs reported in
your company’s normal cost accounting system and to the
accounting records used by your company to prepare its fi-
nancial statements.” J.A. 160. Commerce provided a sam-
ple reconciliation worksheet, requesting Corinth follow “a
‘top down’ approach (e.g., financial statements to per-unit
cost), starting with cost of sales from the financial state-
ments and proceeding step-by-step down through cost of
manufacturing for the reporting period to the summation
of the reported per-unit costs.” J.A. 162. In Septem-
ber 2020, Corinth submitted its initial questionnaire re-
sponse. J.A. 3376–483.
B. First Supplemental Questionnaire
In May 2021, citing deficiencies in Corinth’s initial
questionnaire response, Commerce issued a first supple-
mental questionnaire. J.A. 3929–38. Commerce explained
that the reconciliation worksheet in Corinth’s response to
the initial questionnaire failed to show the cost of manu-
facture for the period of review or “tie to the cost reported
in” Corinth’s cost accounting system. J.A. 3933. Com-
merce requested that Corinth “provide worksheets” in a
specified format that “reconcil[ed] the total” cost of manu-
facture for the period of review “to the total per-unit man-
ufacturing costs submitted to Commerce.” Id. Commerce
also requested that Corinth “[i]dentify and quantify” and
“explain” various “reconciling items.” J.A. 3933–34.
In June 2021, Corinth submitted its response to the
supplemental questionnaire. J.A. 4242–43, 4249–50, 5949,
5955–68, 5973–76. Corinth explained that it “cannot gen-
erate a single [cost of manufacture] report from its system”
because this “would double or triple count costs when the
product passed through multiple production phases.”
J.A. 4243.
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CORINTH PIPEWORKS PIPE INDUSTRY SA v. US 5
C. Second Supplemental Questionnaire
Finding deficiencies in Corinth’s first supplemental
questionnaire response, Commerce issued a second supple-
mental questionnaire in July 2021. J.A. 6493–97. Com-
merce explained that Corinth’s first supplemental
response had “extensive calculation worksheets and recon-
ciliation” data that were “difficult to interpret because of
the lack of adequate descriptions as to the methodology
used.” J.A. 6496. Commerce requested that Corinth ex-
plain why it was “necessary to include” reported costs for
months outside the period of review and why the company
was “unable to generate a single” cost of manufacture re-
port from its system. J.A. 6495–96 (quotations omitted).
Commerce also requested that Corinth describe steps
taken to explain how specific information “supports your
overall reconciliation,” explain particular “lines of data,”
and define certain terms. J.A. 6496.
In July 2021, Corinth submitted its second supple-
mental questionnaire response. J.A. 6976, 6986–93,
6996–99, 7004–05, 7027–36. Corinth explained that “a sin-
gle [cost of manufacture] report from its system” would
“double or triple count costs when the product passed
through multiple production phases” because “the accumu-
lation of costs at each stage of production would lead to
double counting.” J.A. 6986–97. Corinth also explained
that it had to submit separate reconciliations because it
“cannot extract from” its cost accounting system “a costing
report that combines years.” J.A. 6997. Corinth submitted
a version of its reconciliation data for 2019, with annota-
tions purporting to provide “a road map for the worksheets
and source data contained” therein. J.A. 6998 (quotations
omitted).
D. Preliminary and Final Results
At the end of July 2021, Commerce issued its Prelimi-
nary Results. Large Diameter Welded Pipe from Greece,
86 Fed. Reg. 43172 (Dep’t of Commerce Aug. 6, 2021)
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(“Preliminary Results”). Commerce relied on Corinth’s sub-
mitted information to conduct a less than fair value analy-
sis,1 comparing the export price of Corinth’s U.S. sales
made during the period of review to the normal value that
was based on constructed value.2 See generally Decision
Memorandum for the Preliminary Results of the 2019–2020
Administrative Review of the Antidumping Duty Order on
Large Diameter Welded Pipe from Greece, 86 ITADOC
43172 (Dep’t of Commerce Aug. 6, 2021) (“Preliminary De-
cision Memorandum”), J.A. 8180–93. From this analysis,
Commerce determined that U.S. sales of the imported pipe
had “not been made at prices less than normal value.” Id.
1 Generally, an antidumping duty is “equal to the
amount by which the normal value exceeds the export price
(or the constructed export price) for the merchandise” sub-
ject to the investigation. 19 U.S.C. § 1673. The “normal
value” is “the price at which the foreign like product is first
sold (or, in the absence of a sale, offered for sale) for con-
sumption in” either (1) “the exporting country, in the usual
commercial quantities and in the ordinary course of trade
and, to the extent practicable, at the same level of trade as
the export price or constructed export price”; or (2) under
certain conditions, “a country other than the exporting
country of the United States.” Id. § 1677b(a)(1)(B).
2 If the normal value in the exporting country cannot
be determined, then the normal value “may be the con-
structed value.” 19 U.S.C. § 1677b(a)(4). The “constructed
value” is partly based on the sum of “the cost of materials
and of fabrication or other processing of any kind employed
in producing the merchandise,” and, with some exceptions,
“the actual amounts incurred and realized by the specific
exporter or producer being examined in the investigation
or review for selling, general, and administrative expenses,
and for profits, in connection with the production and sale
of a foreign like product, in the ordinary course of trade, for
consumption in the foreign country.” Id. § 1677b(e)(1)–(2).
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CORINTH PIPEWORKS PIPE INDUSTRY SA v. US 7
at J.A. 8180. Commerce “preliminarily determine[d]” that
Corinth’s estimated weighted-average dumping margin
was 0%. Preliminary Results, 86 Fed. Reg. at 43173. Sig-
nificantly, Commerce noted that it received Corinth’s re-
sponse to the second supplemental questionnaire shortly
before the Preliminary Results, and that it intended to con-
sider the response for purposes of the final determination.
Preliminary Decision Memorandum, J.A. 8181.
In February 2022, Commerce issued its final determi-
nation in the review. Large Diameter Welded Pipe from
Greece, 87 Fed. Reg. 7120 (Dep’t of Commerce Feb. 8, 2022)
(“Final Results”). According to Commerce, it “attempted to
piece together a meaningful reconciliation” from the “volu-
minous worksheets, datafiles, and report downloads sub-
mitted by Corinth” in the various questionnaire responses,
in order to “determine whether Commerce could rely on
Corinth’s submitted cost information.” Decision Memoran-
dum for the Final Results of the 2019–2020 Administrative
Review of the Antidumping Duty Order on Large Diameter
Welded Carbon and Alloy Steel Line Pipe from Greece,
87 ITADOC 7120 (Dep’t of Commerce Feb. 2, 2022) (“Final
Decision Memorandum”), J.A. 8993–9014, at J.A. 9006.
Commerce determined that it could not rely on Corinth’s
submitted cost data and information.
Commerce explained that it encountered deficiencies in
each of Corinth’s three questionnaire responses. In Cor-
inth’s initial questionnaire response, Commerce found at
least three deficiencies. The response (1) “did not reconcile
the expenses per [Corinth’s] audited income statement to
[Corinth’s] extended cost database”; (2) “relied on amounts
that included the counting of product costs at both the sem-
ifinished stage and the finished product stage, resulting in
‘double counted’ costs from intermediate stages, thus
grossly over inflating the figures”; and (3) “failed to provide
Commerce with one complete reconciliation, as requested,
providing instead two separate reconciliations for different
parts of the” period of review. Id. at J.A. 9004. On the
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CORINTH PIPEWORKS PIPE INDUSTRY SA v. US 8
third deficiency, Commerce found that one reconciliation
“relied on the 2019 fiscal year and failed to exclude the por-
tion of the year that fell outside of the” period of review
from April 19, 2019 through April 30, 2020, while the other
reconciliation only covered “the first four months of 2020.”
Id. Based on these findings, Commerce concluded that the
two submitted reconciliations “did not show the total ex-
tended” cost of manufacture for the period of review from
Corinth’s cost of production data. Id.
In Corinth’s first supplemental questionnaire re-
sponse, Commerce found that “Corinth again provided two
separate incomplete reconciliations, one for fiscal
year 2019 and one for the first 4 months of 2020 instead of
one overall reconciliation,” as was requested. Id.
at J.A. 9005. Accordingly, the 2019 reconciliation “failed to
exclude the first quarter 2019 costs and, thus, did not show
a financial statement” cost of manufacture for the period of
review. Id. Commerce also found that the two partial rec-
onciliations failed to include actual costs for other items.
Id.
In Corinth’s second supplemental questionnaire re-
sponse, Commerce identified four deficiencies: (1) Corinth
again “failed to provide a proper cutoff of accounting peri-
ods and one complete [period of review] cost reconciliation
worksheet”; (2) if the two accounting periods were properly
cut off and excess costs removed, total cost of manufacture
would “still include ‘double counted’ costs” in the submitted
cost of production / constructed value file from Corinth’s
cost accounting system; (3) after excluding the double
counted costs, “the amounts contained in the [cost of pro-
duction / constructed value] file include costs and quanti-
ties that are not in accordance with” Corinth’s audited
financial statements; and (4) there were “significant differ-
ences in materials and conversion costs” between the au-
dited financial statements and cost accounting system
data. Cost of Production and Constructed Value Calcula-
tion Adjustments for the Final Results—Corinth Pipeworks
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CORINTH PIPEWORKS PIPE INDUSTRY SA v. US 9
Pipe Industry S.A. (Dep’t of Commerce Feb. 2, 2022) (“Fi-
nal Results Calculation Memorandum”), J.A. 9015–22,
at J.A. 9016–18.
Based on these deficiencies, Commerce made three de-
terminations central to this appeal. First, Commerce de-
termined to resort to “facts otherwise available,” pursuant
to 19 U.S.C. § 1677e(a)(2). Final Decision Memorandum,
J.A. 8996. Commerce determined that “Corinth failed to
provide the necessary cost reconciliation in the form and
manner requested” under § 1677e(a)(2)(B). Id. Thus, Com-
merce determined that Corinth “withheld requested infor-
mation necessary to demonstrate that all costs were either
appropriately included or excluded from the reported cost
database” under § 1677e(a)(2)(A). Id. As a result, Corinth
“significantly impeded the proceeding because reconciling
items were unidentified and unsupported by the record”
under § 1677e(a)(2)(C). Id.3 Commerce concluded that the
information Corinth provided was “too incomplete to serve
as a reliable basis for reaching a determination,” because
Corinth’s submissions provided Commerce “no reliable cost
of production [] information,” which is “vital” to its analy-
sis. Id. at J.A. 8997, 9002–07.
3 Additionally, Commerce noted that it was not re-
quired to consider Corinth’s ability to submit the infor-
mation in the requested form and manner under 19 U.S.C.
§ 1677m(c)(1), because Corinth did not “notify Commerce
that it was unable to submit the information in the form
and manner requested,” instead submitting “a voluminous
dump of different reports, worksheets, and tables, result-
ing in an incomplete reconciliation.” Final Decision Mem-
orandum, J.A. 8996. Commerce also determined that it
was not required to consider Corinth’s submitted infor-
mation under 19 U.S.C. § 1677m(e), because Corinth’s de-
ficient submissions met none of the requirements
enumerated at that subsection. Id.
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Second, Commerce decided to use an “adverse infer-
ence,” as provided under 19 U.S.C. § 1677e(b), because Cor-
inth had “not act[ed] to the best of its ability to comply
with” Commerce’s requests for information. Id.
at J.A. 8998–99.
Third, as an adverse inference, Commerce determined
to apply total adverse facts available (“AFA”) in the form of
“the highest dumping margin alleged in the petition” sub-
mitted in the underlying antidumping duty investiga-
tion: 41.04% ad valorem. J.A. 8999–9001.
III. Trade Court
Corinth filed an appeal before the United States Court
of International Trade (“Trade Court”) challenging Com-
merce’s Final Results. In September 2022, Corinth moved
for judgment on the agency record pursuant to Rule 56.2 of
the Rules of the Trade Court. J.A. 9107, 9112–55,
9157–281. Corinth argued that Commerce’s decision to ap-
ply total AFA was unreasonable for three reasons. First,
Commerce failed to provide an opportunity to comment on
a change in methodology under 19 U.S.C. § 1677m(g).
J.A. 9117–24. Second, Commerce erroneously rejected
Corinth’s cost data and applied total AFA in violation of
§ 1677e(a), and erroneously drew an adverse inference un-
der § 1677e(b)(1). J.A. 9124–51, 9153–55. And, third, the
AFA rate selected by Commerce was unreasonable and un-
supported by substantial evidence. J.A. 9151–53.
In April 2023, the Trade Court sustained the Final Re-
sults. The Trade Court found that Commerce was not ob-
ligated to provide an opportunity to comment under
§ 1677m(g), because Commerce neither obtained any “new
information” nor unreasonably changed its methodology.
Trade Court Decision, 633 F. Supp. 3d at 1320–23. Addi-
tionally, the Trade Court found that Commerce’s determi-
nation to resort to total AFA, based on § 1677e(a)
and (b)(1), was reasonable and supported by substantial
evidence due to Corinth’s failure to submit, in the form and
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CORINTH PIPEWORKS PIPE INDUSTRY SA v. US 11
manner requested, the information necessary for cost rec-
onciliation. Id. at 1323–28. Finally, the Trade Court ruled
that Commerce’s selection of the AFA rate was reasonable
and supported by substantial evidence. Id. at 1328–29.
Corinth appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(5).
STANDARD OF REVIEW
We review de novo the Trade Court’s judgments con-
cerning final antidumping duty determinations. Union
Steel v. United States, 713 F.3d 1101, 1106
(Fed. Cir. 2013). In doing so, we “step[] into [the] shoes” of
the Trade Court and “apply[] the same standard of review”
applied by the Trade Court in its review of Commerce’s de-
terminations. JTEKT Corp. v. United States, 642 F.3d
1378, 1381 (Fed. Cir. 2011). We will uphold 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); see Union Steel,
713 F.3d at 1106; Nan Ya Plastics Corp. v. United States,
810 F.3d 1333, 1341 (Fed. Cir. 2016).
When reviewing Commerce’s findings for substantial
evidence, “[w]e look to the record as a whole, including ev-
idence that supports as well as evidence that fairly detracts
from the substantiality of the evidence.” Changzhou Trina
Solar Energy Co. v. United States, 975 F.3d 1318, 1326
(Fed. Cir. 2020). “Substantial evidence on the record
means more than a mere scintilla and such relevant evi-
dence as a reasonable mind might accept as adequate to
support a conclusion.” Atl. Sugar, Ltd. v. United States,
744 F.2d 1556, 1562 (Fed. Cir. 1984) (quotation omitted).
In reviewing whether an action by Commerce is supported
by substantial evidence, we review whether the action was
reasonable based on the agency record as a whole. Chang-
zhou Trina, 975 F.3d at 1326; see 19 U.S.C.
§ 1516a(b)(1)(B)(i).
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D ISCUSSION
Corinth’s principal argument on appeal is that Com-
merce erred when it resorted to total AFA on grounds that
Corinth failed to cooperate to the best of its ability. Corinth
also claims that Commerce failed to provide an opportunity
to comment.4 The United States and the intervenor, Amer-
ican Line Pipe Producers Association Trade Committee,
counter that Commerce’s determinations reached in the Fi-
nal Results are supported by substantial evidence and oth-
erwise not contrary to law.
I. Adverse Facts Available
Section 1677e requires that Commerce use facts other-
wise available if, in relevant part, “an interested party or
any other person”: (A) withholds information requested by
Commerce; (B) fails to provide such information by the
deadlines for submission of the information or in the form
and manner requested, subject to subsec-
tions (c)(1) and (e) of § 1677m; (C) significantly impedes a
proceeding; or (D) provides such information but the infor-
mation cannot be verified in § 1677m(i). 19 U.S.C.
§ 1677e(a)(2). Moreover, if Commerce finds that the party
“has failed to cooperate by not acting to the best of its abil-
ity to comply with a request for information,” Commerce
“may use an inference that is adverse to the interests of
that party in selecting from among the facts otherwise
available[.]” Id. § 1677e(b)(1)(A).
A. Facts Otherwise Available
Corinth argues that Commerce’s determination to use
“facts otherwise available” is unreasonable and unsup-
ported by substantial evidence. Appellant Br. 33–34.
4 Corinth does not appeal the Trade Court’s determi-
nation that Commerce selected a reasonable AFA rate. We
therefore do not reach that issue.
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Specifically, Corinth asserts that it did not withhold infor-
mation or impede the proceeding under § 1677e(a)(2)(A)
or (C), because it submitted a complete cost reconciliation.
Appellant Br. 34–40. We disagree. Commerce determined,
on three occasions, that Corinth failed to provide costs that
reconciled. See Background Section II.B–D. Corinth was
thus aware of the deficiencies. In the Final Results, Com-
merce reviewed in detail the numerous deficiencies in the
reconciliation data in Corinth’s first two responses and de-
scribed the continuation of these deficiencies in the third
response. See Background Section II.D. Commerce sifted
through Corinth’s “voluminous dump of reports, work-
sheets, and tables.” Final Decision Memorandum,
J.A. 8996. Commerce determined that Corinth’s submitted
reconciliation included months outside the period of re-
view, double counted costs, and contained amounts that
differed significantly from costs in Corinth’s audited finan-
cial statements. Final Results Calculation Memorandum,
J.A. 9016–18. Commerce thus concluded that Corinth’s
data did not reconcile and that Corinth had thereby with-
held requested information (i.e., a complete reconciliation)
under § 1677e(a)(2)(A) and thereby significantly impeded
the proceeding under § 1677e(a)(2)(C). Final Decision
Memorandum, J.A. 9002. These determinations are sup-
ported by substantial evidence.
Corinth asserts that Commerce “mistakenly character-
ized” certain costs associated with the production of semi-
finished pipe as “double counted” in Corinth’s submitted
data and then “twice deduct[ed]” those costs. Appellant
Br. 34–40 (citing annotations “q” and “u” in Final Results
Calculation Memorandum, J.A. 9019–20). We disagree.
Corinth was required to provide a complete reconciliation
in the first place. The burden was on Corinth to “creat[e]
an adequate record” that could reconcile costs and to ex-
plain how the data showed the costs reconciled. See Nan
Ya, 810 F.3d at 1337–38 (citation and quotations omitted).
But Corinth failed to do so. As a result, Commerce
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CORINTH PIPEWORKS PIPE INDUSTRY SA v. US 14
reasonably determined that Corinth failed to produce an
adequate record, because “[m]erely providing a bulk of in-
formation does not constitute a response to inquiries re-
questing that [Corinth] clearly explain how its submitted
cost data reconcile to [Corinth’s] audited financial state-
ment” on cost of manufacture. Final Decision Memoran-
dum, J.A. 9003.
Corinth asserts that Commerce’s determination that
Corinth failed to provide information in the requested form
and manner under § 1677e(a)(2)(B) is unsupported by sub-
stantial evidence. Appellant Br. 40–41. But Corinth did
not make this argument before the Trade Court. In its
briefs before the Trade Court, Corinth admitted that it
“provided an alternate to Commerce’s preferred reconcilia-
tion structure.” J.A. 9129. The Trade Court explained that
Corinth “concede[d]” that its cost reconciliation was not
submitted in the requested form and manner. Trade Court
Decision, 633 F. Supp. 3d at 1324. This court has held that
a party waives an argument not presented in its opening
brief filed with the Trade Court. Novosteel SA v. U.S.,
Bethlehem Steel Corp., 284 F.3d 1261, 1273
(Fed. Cir. 2002) (addressing a party’s failure to “present[]”
its argument “in the principal summary judgment brief”).
Because Corinth did not raise this argument before the
Trade Court, we deem it waived.
Lastly, Corinth claims that Commerce legally erred by
failing to notify Corinth about deficiencies in its submitted
reconciliation, as required under 19 U.S.C. § 1677m(d).
Appellant Br. 47–53. Section 1677m(d) requires that, if “a
response to a request for information under this subtitle
does not comply with the request,” Commerce “shall
promptly inform the person submitting the response of the
nature of the deficiency and shall, to the extent practicable,
provide that person with an opportunity to remedy or ex-
plain the deficiency[.]” 19 U.S.C. § 1677m(d). Corinth,
however, did not argue before the Trade Court that Com-
merce was required to provide notice under § 1677m(d).
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The Trade Court went as far as to point out that Corinth
could have made this argument but did not. Trade Court
Decision, 633 F. Supp. 3d at 1323 n.7. We, therefore, find
the argument waived. See Novosteel, 284 F.3d at 1273.5
B. Adverse Inference
In the alternative, Corinth asserts that, assuming
Commerce is correct that Corinth did not provide the re-
quested information, Commerce erred in using an adverse
inference, because Corinth “cooperate[d] to the best of its
ability” under § 1677e(b). Appellant Br. 56 (quoting Nip-
pon Steel Corp. v. United States, 337 F.3d 1373, 1382
(Fed. Cir. 2003)) (quotations omitted). We are not per-
suaded.
Generally, “the statutory mandate that a respondent
act to ‘the best of its ability’ [under § 1677e(b)] requires the
respondent to do the maximum it is able to do.” Nippon
Steel Corp., 337 F.3d at 1382. We recognize that § 1677e(b)
“does not require perfection” and that “mistakes sometimes
occur.” Id. On the other hand, the statute “does not con-
done inattentiveness, carelessness, or inadequate record
keeping.” Id. This standard
assumes that importers are familiar with the rules
and regulations that apply to the import activities
undertaken and requires that importers, to avoid a
risk of an adverse inference determination in re-
sponding to Commerce’s inquiries: (a) take reason-
able steps to keep and maintain full and complete
records documenting the information that a rea-
sonable importer should anticipate being called
upon to produce; (b) have familiarity with all of the
5 The record shows that Commerce provided Corinth
with multiple “opportunities to remedy or explain the defi-
ciencies in the cost reconciliation.” Final Decision Memo-
randum, J.A. 8996; see Background Section II.B–D.
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CORINTH PIPEWORKS PIPE INDUSTRY SA v. US 16
records it maintains in its possession, custody, or
control; and (c) conduct prompt, careful, and com-
prehensive investigations of all relevant records
that refer or relate to the imports in question to the
full extent of the importers’ ability to do so.
Id. Congress intended for the adverse inference provision
“to ensure that the [non-cooperating] party does not obtain
a more favorable result by failing to cooperate than if it had
cooperated fully.” Statement of Administrative Action on
the Uruguay Round Agreements Act, 108 Stat. 4809
(Dec. 8, 1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4199
(“SAA”).6
Commerce determined that Corinth did not cooperate
to the best of its ability to remedy the multiple deficiencies
in its submitted reconciliation. Final Decision Memoran-
dum, J.A. 9005–06. Commerce recognized that due to con-
straints in Corinth’s cost accounting system, “Corinth may
not have been able to generate a cost report for a period
that spans two fiscal years,” like the period of review here.
Id. at J.A. 9005. Nonetheless, Commerce determined that
“Corinth admits that it can extract” from its accounting
system a “costing report for a range of months in the same
year.” Id. Thus, Commerce determined that Corinth
“could have generated data for the last nine months of 2019
as it did for the first four months of 2020,” thereby “re-
mov[ing] the three months of 2019 costs incurred prior to
the” period of review. Id. Corinth’s failure to do so,
6 The SAA “shall be regarded as an authoritative ex-
pression by the United States concerning the interpreta-
tion and application of the Uruguay Round Agreements
and this Act in any judicial proceeding in which a question
arises concerning such interpretation or applica-
tion.” 19 U.S.C. § 3512(d).
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CORINTH PIPEWORKS PIPE INDUSTRY SA v. US 17
Commerce determined, is indicative of a failure to act to
the best of its ability. Id. at J.A. 9005–07. We agree.
The record reflects substantial evidence supporting
Commerce’s determination that Corinth failed to act to the
best of its ability to remedy the deficiencies in its submitted
reconciliation. See id. at J.A. 9005. Corinth contends that
it “‘put forth its maximum effort’ when it explained that it
was necessary to submit two reconciliations as its financial
statements correspond to the calendar year.” Appellant
Reply Br. 27 (quoting Nippon Steel, 337 F.3d at 1382).
But, as described above, Commerce relied on Corinth’s own
submissions to determine that Corinth could have worked
around the constraints in its accounting system. Final De-
cision Memorandum, J.A. 9005. On this basis, Commerce
reasonably determined that Corinth had not “put forth its
maximum effort to provide Commerce with full and com-
plete answers.” Id. at J.A. 8998. Commerce therefore was
justified in its use of an adverse inference to apply total
AFA.
Corinth contends that it “had no reason to alert Com-
merce of any difficulties when it presumed that it was fol-
lowing Commerce’s instructions.” Appellant Reply Br. 26
(emphasis added). We are not persuaded. Corinth asks us
to turn a blind eye to the record evidence. Commerce’s
questionnaires repeatedly requested that Corinth remedy
deficiencies in its responses. See Background Section II.B–
D. At minimum, Corinth could have notified Commerce
under 19 U.S.C. § 1677m(c) that it would be “unable” to do
so. See id.7
7 Corinth alerted Commerce that its cost accounting
system was unable to combine multiple years. J.A. 6997.
But this was not a notification that, as a general matter,
Corinth was unable to remedy the identified deficiencies.
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CORINTH PIPEWORKS PIPE INDUSTRY SA v. US 18
Corinth asserts that Commerce’s determination to ap-
ply an adverse inference as total AFA under § 1677e(b) was
error because there was other information Commerce could
have used to make a neutral inference or apply partial
AFA. Appellant Br. 55–58. According to Corinth, Com-
merce could have used information on the record to fill pur-
portedly “small gaps” that Commerce identified between
Corinth’s audited financial statements and its reported
costs. Id.
But Commerce is not obligated in every case to fill gaps
in a respondent’s questionnaire response using partial
AFA. This is particularly true where the missing or defi-
cient information concerns core data, such as cost reconcil-
iation data. Corinth relies on Zhejiang DunAn Hetian
Metal Co. v. United States, but, in that case, we required
Commerce to fill a “gap in the record” where Commerce
could have calculated the dumping margin “without that
missing information.” 652 F.3d 1333, 1345–48
(Fed. Cir. 2011). In this case, Commerce encountered more
than mere “small gaps” in Corinth’s responses. As Com-
merce noted, “a proper reconciliation is a significant part
of a cost response,” and a “major point of the reconciliation
is to establish that the reported unit costs and production
quantities square with the financial accounting system, the
cost accounting system, and the production records.” Final
Decision Memorandum, J.A. 9002–03 (emphases added).
Because such data are core to Commerce’s cost review,
Commerce reasonably determined that Corinth’s failure to
provide the requested information in the required form
“significantly impede[d] this review.” Id. Commerce rea-
sonably determined that there existed a “large
See Final Decision Memorandum, J.A. 9005 (noting Cor-
inth’s “admi[ssion] that it can extract” from its accounting
system a “costing report for a range of months in the same
year”).
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CORINTH PIPEWORKS PIPE INDUSTRY SA v. US 19
unreconciled difference between Corinth’s audited finan-
cial statement [cost of manufacturing] and its reported
costs” based on Corinth’s “voluminous and complex” data
files and worksheets. Id. at J.A. 8999 (emphasis added),
9003. That record information is substantial evidence sup-
porting Commerce’s actions concerning use of an adverse
inference as total AFA.
Based on the foregoing reasons, we hold that Com-
merce’s determination to resort to total AFA including an
adverse inference to establish Corinth’s dumping margin
was reasonable, supported by substantial evidence, and
otherwise not contrary to law.
II. Opportunity to Comment
Corinth argues that Commerce improperly failed to
provide it with an opportunity to comment “on information
serving as the basis for Commerce’s determination to apply
AFA.” Appellant Br. 18.
19 U.S.C. § 1677m(g) provides that that information
that is timely submitted to Commerce during a proceeding
shall be subject to comment by other parties to the proceed-
ing within a reasonable time. 19 U.S.C. § 1677m(g). The
statute provides that “before making a final determina-
tion,” Commerce “shall cease collecting information and
shall provide the parties with a final opportunity to com-
ment on the information obtained by” Commerce “upon
which the parties have not previously had an opportunity
to comment. Comments containing new factual infor-
mation shall be disregarded.” Id.
Corinth asserts that Commerce contravened
§ 1677m(g) by failing to provide an opportunity to comment
on the analysis that Commerce used in the Final Results
that led to the conclusion that Corinth’s “reported costs did
not reconcile with its financial accounting system.” Appel-
lant Br. 18. According to Corinth, Commerce’s analysis
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CORINTH PIPEWORKS PIPE INDUSTRY SA v. US 20
constituted “information” requiring an opportunity to com-
ment under § 1677m(g). Id. at 20–26. We disagree.
We have explained that § 1677m(g) requires that Com-
merce provide an opportunity to comment on “all infor-
mation timely filed by interested parties.” QVD Food Co. v.
United States, 658 F.3d 1318, 1324 (Fed. Cir. 2011) (em-
phasis added). The Trade Court has similarly maintained
that information requiring an opportunity to comment un-
der § 1677m(g) is information that Commerce “collects or
obtains externally,” not Commerce’s internal findings or in-
terpretations of facts. Tri-Union Frozen Prods., Inc. v.
United States, 163 F. Supp. 3d 1255, 1289
(Ct. Int’l Trade 2016). We note that Corinth is the only
party in the review, so there are no other party submissions
on which Corinth was entitled to comment. Nor were Com-
merce’s internal findings or interpretations of facts “infor-
mation” received from an external source. As such, we
conclude that Corinth’s own submissions were not “infor-
mation” triggering an entitlement to an opportunity to
comment under § 1677m(g).
Similarly, Corinth argues that it was improperly de-
nied an opportunity to comment on Commerce’s change in
methodology made after the Preliminary Results. Appel-
lant Br. 20–26. According to Corinth, Commerce initially
relied on its submitted information, resulting in a dumping
margin of 0% in the Preliminary Results. Id. at 21. Cor-
inth asserts that Commerce then changed its methodology,
leading to an application of total AFA with an adverse in-
ference in the form of the highest dumping margin alleged
in the petition of 41.04% ad valorem. Id. This argument is
without merit. We have determined that Commerce is not
bound by its preliminary determinations, which “are ‘pre-
liminary’ precisely because they are subject to change.”
NTN Bearing Corp. v. United States, 74 F.3d 1204, 1208
(Fed. Cir. 1995). We see no reason to bind Commerce to its
Preliminary Results in this case.
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CORINTH PIPEWORKS PIPE INDUSTRY SA v. US 21
We also find unpersuasive Corinth’s citation to various
cases in support of its argument that it was entitled to an
opportunity to comment based on a change in methodology.
See Appellant Br. 20–21 (discussing Koyo Seiko Co., Ltd. v.
United States, 516 F. Supp. 2d 1323 (Ct. Int’l Trade 2007),
and Shikoku Chems. Corp. v. United States,
795 F. Supp. 417 (Ct. Int’l Trade 1992)). The cases Cor-
inth relies on address similar issues to SKF USA, Inc. v.
United States, 537 F.3d 1373, 1381 (Fed. Cir. 2008), where
this court examined whether a party should be entitled to
submit comments where there has been a change in meth-
odology and an allegation of detrimental reliance. Here,
there is neither. Commerce simply altered its procedural
path when it determined that it was necessary under the
statute to resort to total AFA given Corinth’s failure to pro-
vide useable and reliable information and data. In addi-
tion, Corinth has not established, as it claims, that it
assumed Commerce would maintain the same analysis
from the Preliminary to Final Results. See Background
Section II.D. Nor has Corinth presented any evidence that
it relied to its detriment on such an assumption. Thus,
there is no basis for Corinth’s argument that it was entitled
to an opportunity to comment on a change in methodology.
For the foregoing reasons, we conclude that Commerce
did not contravene § 1677m(g).
CONCLUSION
We have considered Corinth’s remaining arguments
and find them unpersuasive. Accordingly, for the foregoing
reasons, we affirm the judgment by the Trade Court sus-
taining Commerce’s Final Results.
AFFIRMED
COSTS
Costs against Corinth.
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