Ag Der Dillinger Huttenwerke, Friedr. Lohmann Gmbh, Thyssenkrupp Steel Europe Ag v. United States, Ssab Enterprises LLC, Nucor Corporation

United States Court of Appeals
for the Federal Circuit
______________________
AG DER DILLINGER HUTTENWERKE, FRIEDR.
LOHMANN GMBH, THYSSENKRUPP STEEL
EUROPE AG,
Plaintiffs
ILSENBURGER GROBBLECH GMBH,
SALZGITTER FLACHSTAHL GMBH, SALZGITTER
MANNESMANN GROBBLECH GMBH,
SALZGITTER MANNESMANN INTERNATIONAL
GMBH,
Plaintiffs-Appellants
v.
UNITED STATES, SSAB ENTERPRISES LLC,
NUCOR CORPORATION,
Defendants-Appellees
______________________
2024-1219
______________________
Appeal from the United States Court of International
Trade in Nos. 1:17-cv-00158-LMG, 1:17-cv-00160-LMG,
1:17-cv-00162-LMG, Senior Judge Leo M. Gordon.
______________________
Decided: June 17, 2025
______________________
RON K ENDLER , White & Case LLP, Washington, DC,
argued for plaintiffs-appellants. Also represented by
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AG DER DILLINGER HUTTENWERKE v. US 2
D AVID E DWARD BOND, ALLISON K EPKAY .
K ARA WESTERCAMP , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee United States.
Also represented by BRIAN M. B OYNTON, T ARA K. HOGAN,
P ATRICIA M. MC CARTHY ; AYAT MUJAIS , Office of the Chief
Counsel for Trade Enforcement and Compliance, United
States Department of Commerce, Washington, DC.
J EFFREY D AVID G ERRISH , Schagrin Associates, Wash-
ington, DC, argued for defendant-appellee SSAB Enter-
prises LLC. Also represented by N ICHOLAS J. BIRCH , SAAD
YOUNUS CHALCHAL , CHRISTOPHER T ODD CLOUTIER,
ELIZABETH D RAKE, WILLIAM ALFRED F ENNELL , L UKE A.
MEISNER, ROGER BRIAN SCHAGRIN.
ALAN H. P RICE, Wiley Rein, LLP, Washington, DC, for
defendant-appellee Nucor Corporation. Also represented
by STEPHANIE MANAKER BELL , T ESSA V. CAPELOTO,
STEPHEN J OSEPH OBERMEIER , ADAM MILAN T ESLIK,
MAUREEN E. T HORSON, ENBAR T OLEDANO, CHRISTOPHER B.
WELD.
______________________
Before L OURIE, D YK, and REYNA, Circuit Judges.
D YK, Circuit Judge.
In this antidumping case, appellants Ilsenburger
Grobblech GmbH, Salzgitter Flachstahl GmbH, Salzgitter
Mannesmann Grobblech GmbH, and Salzgitter Mannes-
mann International GmbH (collectively, “Salzgitter”) ap-
peal from a decision of the U.S. Court of International
Trade (“Trade Court”) sustaining the Department of Com-
merce’s application of partial adverse facts available to im-
pose a final dumping margin of 22.9 percent on Salzgitter’s
steel plate products.
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AG DER DILLINGER HUTTENWERKE v. US 3
Commerce applied an adverse inference based on its
determination that Salzgitter failed to cooperate to the best
of its ability with one of Commerce’s requests for infor-
mation. We hold that, although Commerce’s information
request imposed an unreasonable burden on Salzgitter,
Commerce’s application of an adverse inference was per-
missible because Salzgitter failed to propose reasonable al-
ternative forms of the missing information as required by
statute. We reject Salzgitter’s other contentions and ac-
cordingly affirm.
BACKGROUND
I
In an antidumping duty proceeding, Commerce must
determine whether a foreign exporter’s merchandise is be-
ing, or is likely to be, sold “in the United States at less than
its fair value.” Risen Energy Co. v. United States,
122 F.4th 1348, 1351 (Fed. Cir. 2024) (quoting Changzhou
Trina Solar Energy Co. v. United States, 975 F.3d 1318,
1321 (Fed. Cir. 2020)). When merchandise is sold at less
than fair value, Commerce calculates a “dumping margin”
for each entry of merchandise subject to Commerce’s re-
view. 19 U.S.C. § 1675(a)(2). The dumping margin is “the
amount by which the normal value” (typically the price at
which a particular piece of merchandise is sold in an ex-
porter’s home country) “exceeds the export price or con-
structed export price of the subject merchandise.” Id.
§ 1677(35)(A); accord id. § 1677b(a). If an exporter’s affili-
ated companies sell both the exporter’s products and other
manufacturers’ products (as is the case here), Commerce
must decide which home market sales are attributable to
the exporter under review in order to calculate the dump-
ing margin.
Exporters whose merchandise is subject to an anti-
dumping investigation are obligated to provide information
necessary for Commerce to reach its final antidumping de-
terminations. See Oman Fasteners, LLC v. United States,
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AG DER DILLINGER HUTTENWERKE v. US 4
125 F.4th 1068, 1075 (Fed. Cir. 2025). Commerce gathers
this information by issuing “questionnaires requesting fac-
tual information” about an exporter’s business. 19 C.F.R.
§ 351.221(b)(2); 19 U.S.C. § 1677b(b)(2)(A)(ii). If Com-
merce lacks information necessary to its determination af-
ter an exporter has responded to its questionnaires, it
“must ‘fill in the gaps’ using information otherwise availa-
ble to it.” Oman Fasteners, 125 F.4th at 1075 (quoting
BMW of N. Am. LLC v. United States, 926 F.3d 1291, 1295
(Fed. Cir. 2019)). Where Commerce determines that an ex-
porter “failed to cooperate by not acting to the best of its
ability to comply with a request for information,” Com-
merce may apply an adverse inference to the information
otherwise available in calculating the exporter’s antidump-
ing duty margin. 19 U.S.C. § 1677e(b).
II
Commerce initiated this antidumping investigation in
2016 to determine if antidumping duties should be imposed
on cut-to-length steel plate manufacturers from twelve
countries, including Germany. See Certain Carbon and Al-
loy Steel Cut-To-Length Plate from Austria, Belgium, Bra-
zil, France, the Federal Republic of Germany, Italy, Japan,
the Republic of Korea, the People’s Republic of China, South
Africa, Taiwan, and the Republic of Turkey: Initiation of
Less-Than-Fair Value Investigations, 81 Fed. Reg. 27,089,
27,089–90 (May 5, 2016). Salzgitter was chosen as a man-
datory respondent, and in May 2016, received an initial
questionnaire from Commerce. The initial questionnaire
asked Salzgitter to report the sales of its merchandise in
the United States and in its home market Germany, in-
cluding the resales of its products by affiliated resellers. As
part of this request, Commerce asked Salzgitter to identify
the manufacturer of every plate sold by its resellers be-
cause the plates sold by those resellers included those pro-
duced by manufacturers other than Salzgitter, and
Commerce needed to know which home market sales were
attributable to Salzgitter.
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AG DER DILLINGER HUTTENWERKE v. US 5
In its initial response, Salzgitter submitted a database
with the home-market sales of all its affiliated companies
showing the manufacturers of the plate sold, except that it
excluded some sales of one of its resellers because it was
“unable to identify the manufacturer” of those plates, and
identifying the manufacturer of those plates “could only be
done manually.” J.A. 5742.
This set in motion a lengthy back-and-forth between
Salzgitter and Commerce regarding the missing manufac-
turer information for the sales of Salzgitter’s reseller,
which included five supplemental questionnaires from
Commerce and corresponding responses from Salzgitter.
In the end, Salzgitter was able to produce complete infor-
mation for approximately 80 percent of the sales by its af-
filiated reseller. Salzgitter explained that it was unable to
provide the manufacturer information for the remaining
20 percent of sales (28,000 sales) by its reseller because do-
ing so would impose an unreasonable burden. Salzgitter
estimated that production of the missing information,
which would need to be done manually, “would take at least
4,667 hours, or more than two years for two people working
full-time” to complete. Appellants’ Br. 12 (citing
J.A. 8238–40).
At the verification stage, Commerce agreed with Salz-
gitter that the information could be gathered only through
a manual process of reconciling information from two dis-
tinct sources and agreed with Salzgitter’s estimate that it
would take about 5,000 hours to collect this information.
Following verification, Salzgitter acknowledged that
the missing manufacturer information constituted an in-
formation gap in the record upon which Commerce was ob-
ligated to base its final determination and that Commerce
would need to use information otherwise available. Salz-
gitter proposed three alternatives to make up for this gap.
According to Salzgitter, Commerce could have: (1) at-
tributed to Salzgitter all of the 28,000 sales missing
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AG DER DILLINGER HUTTENWERKE v. US 6
manufacturer information; (2) attributed none of those
sales to Salzgitter; or (3) attributed the percentage of those
sales to Salzgitter that reflected “the actual and verified
ratio of plate purchased from Salzgitter affiliates versus
other mills during” the period of investigation, i.e., the per-
cent calculated based on the sales where the manufacturer
information was identified. Appellants’ Br. 14. All three
approaches would have resulted in a zero percent dumping
margin for Salzgitter.
On April 4, 2017, Commerce assigned Salzgitter a
22.9 percent margin. See Certain Carbon Steel and Alloy
Steel Cut-to-Length Plate from the Federal Republic of Ger-
many: Final Determination of Sales at Less Than Fair
Value, 82 Fed. Reg. 16,360, 16,361 (Apr. 4, 2017). In its
calculations, Commerce relied in part on its determination
that the application of partial adverse facts available was
warranted because Salzgitter failed to cooperate to the best
of its ability by not supplying complete manufacturer infor-
mation for its reseller’s sales. Commerce explained that
this information “is the type of information that a respond-
ent should have reasonably anticipated being required to
provide to its customers for quality assurance and war-
ranty claims,” and concluded that its verification demon-
strated that “Salzgitter had relevant information available
to it[] but determined not to invest the time in comprehen-
sively examining its documentation in order to provide the
requested information.” J.A. 44–45.
Commerce declined to use any of the three alternatives
proposed by Salzgitter. Instead, Commerce attributed to
Salzgitter all 28,000 sales, using “the highest non-aberra-
tional net price among” those sales. J.A. 46. Commerce
maintained the 22.9 percent antidumping duty for Salzgit-
ter when it published the final results of its larger investi-
gation. See Certain Carbon and Alloy Steel Cut-To-Length
Plate from Austria, Belgium, France, the Federal Republic
of Germany, Italy, Japan, the Republic of Korea, and Tai-
wan: Amended Final Affirmative Antidumping
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AG DER DILLINGER HUTTENWERKE v. US 7
Determinations for France, the Federal Republic of Ger-
many, the Republic of Korea and Taiwan, and Antidump-
ing Duty Orders, 82 Fed. Reg. 24,096, 24,098 (May 25,
2017).
III
Salzgitter challenged Commerce’s final determination
in the Trade Court. On the parties’ motions for judgment
on the agency record, the Trade Court concluded that Com-
merce reasonably resorted to facts otherwise available be-
cause Commerce “could not determine whether to include
or exclude the [disputed] plate transactions from . . . Salz-
gitter’s margin calculation[]” due to the missing infor-
mation. AG der Dillinger Hüttenwerke v. United States,
399 F. Supp. 3d 1247, 1253 (Ct. Int’l Trade 2019) (Salzgit-
ter I). The Trade Court then considered whether it was
reasonable for Commerce to apply adverse facts available
based on Salzgitter’s failure to cooperate.
The court sustained Commerce’s decision to apply ad-
verse facts available, finding that the record reasonably
supported Commerce’s determination that Salzgitter failed
to cooperate to the best of its ability. See id. at 1254–56.
Unconvinced that any of Salzgitter’s three proposals for al-
locating the 28,000 missing sales was a reasonable alter-
native, the Trade Court stated that it could not
“understand why Salzgitter did not just simply conduct a
statistical analysis of the [missing plate sales] . . . using a
sufficient and randomized sample size that was then man-
ually matched to the missing manufacturer information.”
Id. at 1255. Such an approach, according to the Trade
Court, would have better supported Salzgitter’s position
under the statute. Id. at 1256.
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AG DER DILLINGER HUTTENWERKE v. US 8
After two additional remands,1 the court sustained
Commerce’s use of the highest non-aberrational net price
among Salzgitter’s downstream market sales for which
there was no manufacturer information. The court found
reasonable Commerce’s explanation that its approach was
warranted given the size of the information gap and the
need to deter noncooperation. See AG der Dillinger Hüt-
tenwerke v. United States, 648 F. Supp. 3d 1321, 1332–33
(Ct. Int’l Trade 2023) (Salzgitter II). Salzgitter appeals.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).
D ISCUSSION
“We review Commerce’s determinations using the
same standard as the Trade Court—that is, whether those
determinations are ‘unsupported by substantial evidence
on the record, or otherwise not in accordance with law[.]’”
1 These remands were necessary because a nearly
identical issue was raised in a separate case before the
Trade Court, Dillinger France S.A. v. United States, 350 F.
Supp. 3d 1349 (Ct. Int’l Trade 2018), where the Trade
Court rejected Commerce’s use of the highest non-aberra-
tional net price of an exporter’s sales to fill a gap caused by
missing manufacturer information. See id. at 1364. In Dil-
linger France, Commerce eventually attributed to the ex-
porter all the sales with missing manufacturer information
at their reported sales prices (which was, in essence, the
first of Salzgitter’s alternative proposals here). See Dil-
linger Fr. S.A. v. United States, 393 F. Supp. 3d 1225,
1228–29 (Ct. Int’l Trade 2019). During the remands here,
Commerce explained that it did not adopt the Dillinger
France approach for Salzgitter because the gap of missing
information in Salzgitter’s case (28,000 sales), greatly ex-
ceeded the number of sales in Dillinger France, and thus
had a material impact on Salzgitter’s margin, in contrast
to Dillinger France, where it did not.
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AG DER DILLINGER HUTTENWERKE v. US 9
Risen Energy, 122 F.4th at 1353 (alteration in original)
(quoting 19 U.S.C. § 1516a(b)(1)(B)(i)).
I
Commerce may apply adverse facts available to fill in
an information gap if it concludes that a respondent has
“failed to cooperate by not acting to the best of its ability to
comply with a request for information.” 19 U.S.C.
§ 1677e(b)(1). One purpose of applying adverse facts avail-
able is to incentivize cooperation because “Commerce lacks
subpoena power” to ensure compliance. Essar Steel Ltd.
v. United States, 678 F.3d 1268, 1276 (Fed. Cir. 2012). The
central question presented in this case is whether Com-
merce may apply adverse facts available to a respondent
based on its failure to cooperate after the respondent has
demonstrated that full compliance with a request would
pose an unreasonable burden.2
We have previously explained that “the ‘best of its abil-
ity’ standard is determined by assessing whether [a] re-
spondent has put forth its maximum effort to provide
Commerce with full and complete answers to all inquiries
in an investigation.” Nippon Steel Corp. v. United States,
337 F.3d 1373, 1382 (Fed. Cir. 2003). This standard nei-
ther “require[s] perfection” nor “condone[s] inattentive-
ness, carelessness, or inadequate record keeping.” Id.
Commerce may apply adverse facts “only under
2 We see no merit to Salzgitter’s argument that Com-
merce should not have applied facts available in the first
instance. Appellants’ Br. 24–30. Salzgitter effectively con-
cedes that the manufacturer information is “critical” for a
margin analysis. Appellants’ Br. 29. Without this critical
information, Commerce could not have fulfilled its duty to
accurately calculate Salzgitter’s dumping margin, so Com-
merce’s resort to facts available was warranted under 19
U.S.C. § 1677e.
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AG DER DILLINGER HUTTENWERKE v. US 10
circumstances in which it is reasonable for Commerce to
expect that more forthcoming responses should have been
made.” See id. at 1383. This obligates Commerce to “ex-
amine [a] respondent’s actions and assess the extent of [a]
respondent’s abilities, efforts, and cooperation” throughout
the proceeding. Id. at 1382.
The statute itself recognizes that there are times where
it may be impractical for a respondent to supply infor-
mation. It provides:
If an interested party, promptly after receiving a
request from [Commerce] for information, notifies
[Commerce] that such party is unable to submit the
information requested in the requested form and
manner, together with a full explanation and sug-
gested alternative forms in which such party is able
to submit the information, [Commerce] shall con-
sider the ability of the interested party to submit
the information in the requested form and manner
and may modify such requirements to the extent
necessary to avoid imposing an unreasonable bur-
den on that party.
19 U.S.C. § 1677m(c)(1) (emphases added). Pertinent to
this assessment is a respondent’s “computer capabilities”—
that is, the respondent’s “ability to provide requested infor-
mation in an automated format without incurring an un-
reasonable extra burden or expense.” Statement of
Administrative Action, Uruguay Round Agreements Act,
H.R. Rep. No. 103-316, as reprinted in 1994 U.S.C.C.A.N.
4040, 4195.
Although Commerce previously asserted that there is
an absolute obligation for a respondent to supply all the
information Commerce requests unless it is impossible to
do so, Commerce acknowledged at oral argument that
§ 1677m(c)(1) makes clear that Commerce cannot demand
information if the request would place an unreasonable
burden on the respondent. Oral Arg. at 13:03–10.
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AG DER DILLINGER HUTTENWERKE v. US 11
Consistent with the statute, Commerce has declined to im-
pose adverse inferences in prior cases because of the ad-
ministrative burdens those requests would impose on
respondents. See Notice of Final Determination of Sales at
Less Than Fair Value: Certain Cut-to-Length Carbon-Qual-
ity Steel Plate Products from Japan, 64 Fed. Reg. 73,215,
73,218 (Dec. 29, 1999) (CTL Japan); Notice of Final Deter-
mination of Sales at Less Than Fair Value: Structural Steel
Beams from Germany, 67 Fed. Reg. 35,497, 35,498–99
(May 20, 2002).
Even if a request does constitute an unreasonable bur-
den, the respondent must still provide “suggested alterna-
tive forms” for submitting the information requested. 19
U.S.C. § 1677m(c)(1).
The issues presented are therefore: (1) whether Com-
merce’s request for the manufacturer information of the
28,000 sales made by Salzgitter’s reseller constituted an
unreasonable burden; and (2) whether Salzgitter proposed
reasonable alternative forms of the missing data to satisfy
§ 1677m(c)(1).
A
We first consider whether the collection of the missing
manufacturer information would have imposed an unrea-
sonable burden on Salzgitter. Under the statute, a re-
spondent is the party responsible for establishing that a
request constitutes an unreasonable burden. See 19 U.S.C.
§ 1677m(c)(1) (providing that a respondent must
“promptly” notify Commerce of an inability to respond in
order to avoid an unreasonable burden).
Commerce appears to contend that requiring Salzgitter
to supply the manufacturer information for each of the
28,000 disputed sales was not an unreasonable burden be-
cause during verification, Salzgitter manually identified a
manufacturer for a particular sale “within minutes.”
Gov’t’s Br. 25. The ability to retrieve relevant information
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AG DER DILLINGER HUTTENWERKE v. US 12
manually in a single instance says nothing about the over-
all burden of the request, as Salzgitter has consistently ar-
gued. Commerce has not disputed Salzgitter’s calculation
of the required burden, nor does Commerce seriously con-
test that the burden was substantial.
Commerce next defends its course of action on the
ground that its treatment of Salzgitter was not incon-
sistent with prior determinations like CTL Japan, where
Commerce acknowledged that a manual retrieval would
have posed an unreasonable burden for the respondent.
See J.A. 45. Commerce distinguishes from CTL Japan be-
cause “technological advances in electronic records man-
agement” since 1999 have “significantly reduce[d] the
burden in obtaining the missing information.” J.A. 45; see
also Gov’t’s Br. 29.
Commerce’s conclusion ignores the fact that here the
missing information required manual assembly, and that
technological enhancements in electronic records manage-
ment could not be utilized to replace a manual effort. See,
e.g., J.A. 8239–40 (explaining burden); J.A. 7107–11
(demonstrating technological obstacles). As Commerce it-
self found at verification, the problem was that Salzgitter’s
reseller did not systematically track manufacturer infor-
mation for each product sold, and collecting the missing in-
formation for the 28,000 disputed sales would require
manual effort. See J.A. 11322–23. Commerce admitted
that completing this manual process “would have required
two people to work full-time for more than two years,” Ap-
pellants’ Br. 35 (citing J.A. 8239–40), noting that its “re-
view was consistent with Salzgitter’s descriptions” of the
estimated time needed to complete the task. J.A. 11313.
Finally, we are unpersuaded by Commerce’s argument
that Salzgitter is responsible for any burden it may have
experienced because manufacturer information “is the type
of information that a respondent should have reasonably
anticipated being required to provide to its customers for
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AG DER DILLINGER HUTTENWERKE v. US 13
quality assurance and warranty claims.” Gov’t’s Br. 28
(quoting J.A. 45). There is no evidence to support this find-
ing, and Commerce’s argument ignores the difference be-
tween responding to individual customer claims using a
manual approach (which Salzgitter could indisputably sat-
isfy) and retrieving the same information in the aggregate
(which may be unreasonably burdensome).
While Commerce appropriately assumes “that import-
ers are familiar with the rules and regulations that apply
to the[ir] import activities,” Nippon Steel, 337 F.3d at 1382,
Commerce notably does not argue that Salzgitter should
have collected the information in anticipation of a need to
produce this information in an antidumping investigation.
It appears that there was little reason for Salzgitter to an-
ticipate this need because this was an original investiga-
tion, and Salzgitter had no prior notice that it would be
named as a respondent.
We conclude that Commerce’s apparent finding of a
lack of an unreasonable burden was not supported by sub-
stantial evidence.3
B
Although we conclude that Commerce’s request im-
posed an unreasonable burden on Salzgitter, we must also
consider whether Salzgitter provided reasonable
3 This is not a situation like that in Maverick Tube
Corp. v. United States, 857 F.3d 1353 (Fed. Cir. 2017),
where the respondent did not properly raise the issue of an
unreasonable burden by asserting that it was unable to
provide the requested information. In fact, in Maverick
Tube, the respondent offered to supply the missing infor-
mation. See id. at 1360–61. Here, Salzgitter did state that
it was unable to provide the missing manufacturer infor-
mation because of the unreasonable burden it would im-
pose.
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AG DER DILLINGER HUTTENWERKE v. US 14
“alternative forms” for reporting the missing information
as required by § 1677m(c)(1).4 In Maverick Tube, we rec-
ognized the obligation of an importer to provide alternative
forms of missing information under the statute. 857 F.3d
at 1361.
Salzgitter contends that its proposed alternatives
would have allowed Commerce to fill the gap in the record
for the missing manufacturer information and, therefore,
Commerce should have accepted any of its three options to
apply neutral, not adverse, facts available. See Appellants’
Br. 37–39. Those three proposals would have attributed
(1) all, (2) none, or (3) a percent of the disputed sales at
their reported and verified prices to Salzgitter based on the
manufacturer data reported by Salzgitter’s resellers, re-
sulting in a dumping margin of zero percent.
Commerce did not err in rejecting Salzgitter’s pro-
posals. The first two did nothing to allocate the
28,000 sales between Salzgitter and other manufacturers.
The third simply assumed that the proportion of Salzgit-
ter’s sales among the 28,000 sales by its affiliated reseller
was the same as the proportion of sales that were identified
as Salzgitter’s in the dataset, without any evidence that
these other sales were representative of the 28,000 sales
missing manufacturer data.
Salzgitter’s proposals were insufficient because they
failed to address Commerce’s concerns about selective
4 The parties further dispute whether Salzgitter
“promptly” provided notice of its difficulties in collecting
the information and its alternative proposals. Compare
Gov’t’s Br. 28–30, with Appellants’ Br. 39. Because we con-
clude that the alternatives proposed by Salzgitter did not
reasonably fill the information gap caused by failure to
supply the missing manufacturer information, we do not
reach the timeliness issue.
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AG DER DILLINGER HUTTENWERKE v. US 15
reporting, which could have potentially rewarded Salzgit-
ter by artificially distorting the margin by failing to reflect
high-priced sales by Salzgitter. See J.A. 170–71 (“Com-
merce cannot rule out the possibility that the sales with the
highest prices were entirely or primarily of CTL plate man-
ufactured by Salzgitter, and Salzgitter’s failure to report
the manufacturer information was an attempt to obscure
this fact, thereby distorting the margin.”). As the Trade
Court recognized, randomized sampling would have been a
reasonable “alternative form[]” of the missing information,
see 399 F. Supp. 3d at 1255, but Salzgitter never proposed
such an approach, and it was Salzgitter’s obligation (not
Commerce’s) to do so under the statute. 19 U.S.C.
§ 1677m(c)(1).
We conclude that Commerce did not err in finding that
Salzgitter did not provide reasonable “alternative forms” of
information as required by § 1677m(c)(1), and that Com-
merce could properly apply adverse facts available.
II
We also reject Salzgitter’s challenge to Commerce’s ap-
plication of the highest non-aberrational net price among
the 28,000 sales to each of the 28,000 sales, while attrib-
uting all those sales to Salzgitter, as partial adverse facts
available. Salzgitter contends that this selection was aber-
rational and not supported by substantial evidence.
In selecting an adverse inference, Commerce enjoys
discretion to choose information on the record from which
to draw an adverse inference to fill an information gap, see
19 U.S.C. § 1677e(b)(2), but may not draw inferences un-
supported by the record or those that are merely punitive
in nature, see Oman Fasteners, 125 F.4th at 1086–87.
Commerce is not required “to select facts that reflect a cer-
tain amount of sales, yield a particular margin, fall within
a continuum according to the application of particular sta-
tistical methods, or align with standards articulated in
other statutes and regulations.” Nan Ya Plastics Corp.
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AG DER DILLINGER HUTTENWERKE v. US 16
v. United States, 810 F.3d 1333, 1347 (Fed. Cir. 2016).
Commerce is not precluded from using the highest non-ab-
errational sales price under appropriate circumstances.
See BMW of N. Am., 926 F.3d at 1301–02.
Commerce’s application of adverse facts available here
was reasonable, if barely so, given the absence of evidence
of misconduct.5 We have recognized that “the ‘inference’
that Commerce ‘may use’ in ‘selecting from among the facts
otherwise available’ must ‘be a reasonably accurate esti-
mate of the respondent’s actual rate, albeit with some
built-in increase intended as a deterrent to non-compli-
ance.’” Diamond Sawblades Mfrs.’ Coal. v. United States,
986 F.3d 1351, 1367 (Fed. Cir. 2021) (quoting F.lli de Cecco
di Filippo Fara S. Martino S.p.A. v. United States,
216 F.3d 1027, 1032 (Fed. Cir. 2000)). Here, the size of the
information gap—20 percent of the reseller’s sales during
the period of investigation—left Commerce unable to rea-
sonably estimate Salzgitter’s actual rate.
Under these circumstances, Commerce’s substitution
of the actual sales prices for the 28,000 sales missing man-
ufacturer information with the highest non-aberrational
net price among those 28,000 sales was a reasonable appli-
cation of adverse facts available based on Salzgitter’s fail-
ure to cooperate to the best of its ability because it did not
supply reasonable alternatives under 19 U.S.C.
5 We note that the sale selected by Commerce did not
identify Salzgitter as the manufacturer of the plate sold,
raising questions as to the propriety of Commerce’s use of
that sale to fill the gap of missing manufacturer infor-
mation. Salzgitter, however, did not object to Commerce’s
use of the sale on the ground that it should not be at-
tributed to it as the manufacturer, so we do not decide the
issue. Nor does Salzgitter object to attributing to it the
28,000 sales missing manufacturer information, an ap-
proach that Salzgitter itself suggested.
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AG DER DILLINGER HUTTENWERKE v. US 17
§ 1677m(c)(1). Such a selection furthers the purposes of
the antidumping statutes by ensuring that intransigent re-
spondents are not rewarded for refusing to cooperate, see
Essar Steel, 678 F.3d at 1276, while ensuring that the “rate
chosen ha[d] a relationship to the actual sales information
available.” Ta Chen Stainless Steel Pipe, Inc. v. United
States, 298 F.3d 1330, 1340 (Fed. Cir. 2002).
Salzgitter additionally argues that the margin Com-
merce calculated was aberrational because the transaction
Commerce selected concerned a product “that was . . . dis-
similar in physical characteristics to the products sold in
the United States.” Appellants’ Br. 42. We see no error in
the Trade Court’s conclusion that, given the circumstances,
Commerce’s approach was reasonable, especially because
Salzgitter failed “to suggest any alternative price from the
record that Commerce could have selected as a reasonable
application” of adverse facts available. 648 F. Supp. 3d at
1333.
We conclude that Commerce’s choice of adverse infer-
ence in its application of adverse facts available was sup-
ported by substantial evidence and otherwise in accordance
with law.
CONCLUSION
We have considered the remainder of Salzgitter’s argu-
ments and do not find them persuasive.
AFFIRMED
COSTS
No costs.
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