Ag Der Dillinger Huttenwerke v. United States, Ssab Enterprises LLC, Nucor Corporation

United States Court of Appeals
for the Federal Circuit
______________________
AG DER DILLINGER HUTTENWERKE,
Plaintiff-Appellant
ILSENBURGER GROBBLECH GMBH,
SALZGITTER FLACHSTAHL GMBH, SALZGITTER
MANNESMANN GROBBLECH GMBH,
SALZGITTER MANNESMANN INTERNATIONAL
GMBH, FRIEDR. LOHMANN GMBH,
THYSSENKRUPP STEEL EUROPE AG,
Plaintiffs
v.
UNITED STATES, SSAB ENTERPRISES LLC,
NUCOR CORPORATION,
Defendants-Appellees
______________________
2024-1498
______________________
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: October 6, 2025
______________________
MARC EDWARD M ONTALBINE , DeKieffer & Horgan,
PLLC, Washington, DC, argued for plaintiff-appellant.
Also represented by J AMES K EVIN HORGAN, MERISA ANNE
Case: 24-1498 Document: 60 Page: 1 Filed: 10/06/2025

-- 1 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 2
HORGAN.
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.
STEPHANIE MANAKER BELL , Wiley Rein, LLP, Washing-
ton, DC, argued for defendant-appellee Nucor Corporation.
Also represented by ALAN H. P RICE , MAUREEN E. T HORSON,
ENBAR T OLEDANO, CHRISTOPHER B. WELD.
ROGER BRIAN SCHAGRIN, Schagrin Associates, Wash-
ington, DC, for defendant-appellee SSAB Enterprises LLC.
Also represented by N ICHOLAS J. BIRCH , SAAD Y OUNUS
CHALCHAL , CHRISTOPHER CLOUTIER, ELIZABETH D RAKE,
WILLIAM ALFRED F ENNELL , J EFFREY D AVID G ERRISH , L UKE
A. MEISNER.
______________________
Before L OURIE, D YK, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
Appellant AG der Dillinger Hüttenwerke appeals from
a final decision of the U.S. Court of International Trade re-
garding an antidumping duty investigation. The Trade
Court sustained the U.S. Department of Commerce’s rejec-
tion of Dillinger’s proposed adjustment to the model-match
methodology and Commerce’s selection of likely selling
price as facts otherwise available for a cost of production
analysis. We affirm the Trade Court’s ruling as to Dil-
linger’s model-match proposal. But we hold that it was un-
reasonable for Commerce to use likely selling price as facts
otherwise available for cost of production, and thus we va-
cate the Trade Court’s ruling as to Commerce’s selection of
Case: 24-1498 Document: 60 Page: 2 Filed: 10/06/2025

-- 2 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 3
facts otherwise available. Accordingly, we vacate and re-
mand.
BACKGROUND
In an antidumping duty investigation, Commerce must
determine whether merchandise subject to the investiga-
tion is being, or is likely to be, “sold in the United States at
less than its fair value.” 19 U.S.C. § 1673(1). To do so,
Commerce compares the normal value, typically the price
at which a “foreign like product” is sold in an exporter’s
home country, to the export price of the subject merchan-
dise. Id. §§ 1677a, 1677b(a), 1677(16) (defining “foreign
like product”), 1677(35)(A) (defining “dumping margin”).
To determine whether merchandise qualifies as a foreign
like product, Commerce may use a “model-match” method-
ology to categorize similar products based on their physical
characteristics. See id. § 1677(16); SKF USA, Inc. v.
United States, 537 F.3d 1373, 1375 (Fed. Cir. 2008). When
determining the normal value, under certain conditions,
Commerce may disregard sales of the foreign like product
made at prices less than the cost of production. 19 U.S.C.
§ 1677b(b).
Commerce issues questionnaires to obtain information
necessary for an investigation. SKF USA, Inc. v. U.S. Cus-
toms & Border Prot., 556 F.3d 1337, 1340–41 (Fed. Cir.
2009). If “necessary information is not available on the rec-
ord,” Commerce must fill in the gaps using facts otherwise
available to it “in reaching the applicable determination.”
19 U.S.C. § 1677e(a); see Oman Fasteners, LLC v. United
States, 125 F.4th 1068, 1075 (Fed. Cir. 2025).
I.
This appeal arises from an antidumping duty investi-
gation of certain carbon and alloy steel cut-to-length plate
from Germany. See Certain Carbon and Alloy Steel Cut-to-
Length Plate from the Federal Republic of Germany,
82 Fed. Reg. 16360 (Dep’t of Commerce Apr. 4, 2017)
Case: 24-1498 Document: 60 Page: 3 Filed: 10/06/2025

-- 3 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 4
(“Final Determination”); J.A. 5882–5981 (issues and deci-
sion memorandum accompanying the Final Determina-
tion). The U.S. Department of Commerce (“Commerce”)
selected AG der Dillinger Hüttenwerke (“Dillinger”), the
appellant before this court, as a mandatory respondent.
The U.S. Court of International Trade (“Trade Court”)
remanded this case to Commerce four times before the cur-
rent appeal arrived at this court. Given this history, our
recitation of the facts and procedural history is limited to
the two issues currently on appeal: Dillinger’s proposed ad-
justment to Commerce’s model-match methodology and
Commerce’s selection of likely selling price as facts other-
wise available for cost of production.
A.
During the investigation, on May 19, 2016, Commerce
solicited comments from interested parties on the physical
characteristics to be used to develop its model-match meth-
odology. J.A. 225. In response, on June 2, 2016, Dillinger
requested that Commerce split the category covering steel
used to transport petroleum products into two categories
with separate quality codes, one of which would cover “sour
service” petroleum transport plate, also referred to as sour
transport plate. J.A. 237–39. Sour transport plate refers
to steel used to transport sour crude oil. According to Dil-
linger, sour crude oil contains high amounts of sulfur and
is extremely corrosive to standard steel, so sour service pe-
troleum transport plate must be “specially made to with-
stand this corrosion,” resulting in a higher cost of
production and warranting a separate category.
J.A. 238–39. On June 10, 2016, Commerce issued its final
product characteristics, which rejected Dillinger’s request
for a separate quality code for sour transport plate.
J.A. 370–84.
Commerce then issued a series of questionnaires. In
response, on July 15, 2016, Dillinger renewed its proposal
to split the category covering steel used to transport
Case: 24-1498 Document: 60 Page: 4 Filed: 10/06/2025

-- 4 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 5
petroleum products, requesting that Commerce use quality
code 771 for sour transport plate. J.A. 1678; J.A. 1690–93.
Next, Commerce issued its first supplemental question-
naire. In response, on September 20, 2016, over three
months after Commerce issued its final product character-
istics, Dillinger requested for the first time that the cate-
gory covering steel for pressure vessel plate be split into
two categories (codes 759 and 760), of which code 759 would
relate to sour pressure vessel plate. J.A. 3077;
J.A. 3086–88. Dillinger asserted that its proposed code 759
for sour pressure vessel plate was “analogous” to its pro-
posed code 771 for sour transport plate, and that its pro-
posed code 759 was justified based on many of the same
reasons as code 771. J.A. 3088.
Shortly thereafter, Commerce issued its preliminary
margin calculation for Dillinger, rejecting Dillinger’s pro-
posed codes 759 and 771. J.A. 4852–53. Commerce issued
its final determination on March 29, 2017, and, consistent
with its preliminary determination, Commerce once again
rejected Dillinger’s proposed codes 759 and 771.
J.A. 5957–60.
B.
In its questionnaires, Commerce also requested that
Dillinger report product-specific cost of production data for
non-prime plate. Non-prime plate is plate that does not
meet customer specifications for prime material but none-
theless may still be sold as plate. Appellant Br. 36 n.1. In
its questionnaire and supplemental questionnaire re-
sponses, Dillinger informed Commerce that it “is not able
to report all the product characteristics for non-prime
[plate],” including its cost of production. J.A. 360–61. Dil-
linger explained that its non-prime plate “is sold by the
railcar load as ‘odds and ends’” and Dillinger’s computer-
ized sales records do not record any “grade/specification in-
formation” for these sales. Id. Dillinger claimed that this
lack of traceability prevented it from reporting product
Case: 24-1498 Document: 60 Page: 5 Filed: 10/06/2025

-- 5 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 6
characteristics at “the level of specificity” that Commerce
requested. J.A. 361. As such, Dillinger reported the cost
of production for all non-prime plate “based upon the aver-
age cost of all plate from the cost object heavy plate,” mean-
ing that Dillinger reported the cost of producing non-prime
plate based on the average cost of producing prime plate.
J.A. 3954.
In its final determination, Commerce disagreed with
Dillinger’s reported cost of production for non-prime plate.
J.A. 5970–71. Commerce adjusted Dillinger’s reported
costs to be consistent with how Commerce understood
these costs to be recorded in Dillinger’s normal books and
records, i.e., that cost of production was equal to the ex-
pected sales value of non-prime plate.1 Id.
II.
A.
Dillinger appealed Commerce’s final determination to
the Trade Court, challenging Commerce’s rejection of its
proposed quality codes relating to sour service steel and its
adjustment to Dillinger’s reported cost of production for
non-prime plate. Dillinger argued that Commerce should
have accepted its proposed quality codes because there are
commercially significant differences between sour service
steel and non-sour service steel, and that Commerce’s ad-
justment to Dillinger’s reported cost of production of non-
prime plate was unlawful because Commerce replaced ac-
tual cost data with sales data. J.A. 5991–93; J.A. 6001–11.
In August 2021, the Trade Court ruled that Commerce
erred in adjusting Dillinger’s reported cost of production for
non-prime plate to reflect likely selling price, rather than
1 Dillinger disputes Commerce’s interpretation of its
normal books and records. Appellant Br. 47–50. We need
not reach this dispute given our resolution of this appeal.
Case: 24-1498 Document: 60 Page: 6 Filed: 10/06/2025

-- 6 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 7
on the basis of actual cost of production data. AG der Dil-
linger Hüttenwerke v. United States, 534 F. Supp. 3d 1403,
1407 (Ct. Int’l Trade 2021) (Dillinger II).2 The Trade Court
held that Commerce needed to review and alter its cost of
production determination for non-prime plate so as to be
consistent with Dillinger France S.A. v. United States, 981
F.3d 1318, 1321–24 (Fed. Cir. 2020) (Dillinger France),
which held that Commerce’s reliance on information re-
flecting a respondent’s “likely selling price,” rather than ac-
tual cost data, violated 19 U.S.C. § 1677b(f). Dillinger II,
534 F. Supp. 3d at 1407 (quoting Dillinger France, 981 F.3d
at 1321–24).
In a separate order issued the same day, the Trade
Court affirmed Commerce’s rejection of Dillinger’s proposal
to add code 759 for sour vessel plate as untimely.
J.A. 32–40 (“August 2021 Order”). The Trade Court stayed
further consideration of Commerce’s rejection of Dillinger’s
other proposed quality code, code 771 for sour transport
plate, pending the outcome of several additional issues that
it remanded in Dillinger II. August 2021 Order, J.A. 40.
On remand, Commerce reopened the record and re-
quested that Dillinger provide the actual cost data of pro-
ducing non-prime products. J.A. 48–49. Dillinger did not
do so for the same reasons it previously explained, namely
that its non-prime products are untraceable.
J.A. 6092–6106. Dillinger also explained that non-prime
plate “undergoes the exact same production steps as prime
plate.” J.A. 6100. In its second remand redetermination,
Commerce relied on its interpretation of Dillinger’s normal
2 Dillinger, among other plaintiffs, previously ap-
pealed Commerce’s final determination to the Trade Court.
See AG der Dillinger Hüttenwerke v. United States, 399
F. Supp. 3d 1247 (Ct. Int’l Trade 2019) (Dillinger I). Dil-
linger I is not at issue in this appeal.
Case: 24-1498 Document: 60 Page: 7 Filed: 10/06/2025

-- 7 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 8
books and records as facts otherwise available to fill the
informational gap. J.A. 49–56.
B.
Dillinger appealed to the Trade Court again, challeng-
ing Commerce’s decision to use the likely selling price of
non-prime plate as facts otherwise available for missing
cost of production information. AG der Dillinger Hütten-
werke v. United States, 592 F. Supp. 3d 1344 (Ct. Int’l
Trade 2022) (Dillinger III). Dillinger argued that Com-
merce erred in using likely selling price as facts otherwise
available for actual cost of production information, which
is a distinct metric. Id. at 1346.
In Dillinger III, the Trade Court affirmed Commerce’s
use of facts otherwise available but held that another re-
mand was necessary for Commerce to explain why its reli-
ance on the likely selling price as facts otherwise available
reasonably reflects the cost of producing non-prime plate.
Id. at 1347–49.
In its third remand redetermination, Commerce ex-
plained that its use of likely selling price as facts otherwise
available was reasonable because producing non-prime
products is “an inevitable consequence” of Dillinger’s prime
product production as “Dillinger does not intend to produce
non-prime products.” J.A. 115. Commerce stated that its
reliance on Dillinger’s normal books and records as facts
otherwise available was the “only reasonable approach be-
cause it recognize[d] that, where Dillinger cannot produce
98 perfect plates without producing two imperfect plates,
the lost value of the two imperfect plates is actually a cost
of producing the 98 perfect ones and should be accounted
for as such.” Id.
C.
Dillinger appealed to the Trade Court a fourth time,
challenging Commerce’s decision to use the likely selling
price of non-prime plate as facts otherwise available for
Case: 24-1498 Document: 60 Page: 8 Filed: 10/06/2025

-- 8 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 9
missing cost of production information and Commerce’s re-
jection of Dillinger’s proposed quality code 771 for sour
transport plate. AG der Dillinger Hüttenwerke v. United
States, 648 F. Supp. 3d 1321, 1323 (Ct. Int’l Trade 2023)
(Dillinger IV). Dillinger continued to argue that Com-
merce’s adjustment of Dillinger’s reported cost of produc-
tion was contrary to Dillinger France, and Commerce
should have used the average cost of production for all
plate as facts otherwise available. Id. at 1325–26.
Regarding its proposed quality code 771, Dillinger ar-
gued that there are commercially significant differences
between sour service steel and non-sour service steel, citing
Bohler Bleche GmbH & Co. KG v. United States,
324 F. Supp. 3d 1344 (Ct. Int’l Trade 2018), in which the
Trade Court struck down the same model-match method-
ology that Commerce used in this investigation. Id.
at 1335.
In Dillinger IV, the Trade Court sustained Commerce’s
third remand redetermination with respect to the cost of
production of Dillinger’s non-prime plate. Id. at 1325–28.
The Trade Court ruled that Dillinger “failed to demon-
strate that Commerce’s application of facts otherwise avail-
able was unreasonable given the limited information in the
record,” and that Dillinger’s proposal that Commerce use
the average actual cost of production for all of its plate sold
during the period of investigation was not persuasive. Id.
at 1325–27.
Also in Dillinger IV, the Trade Court remanded Com-
merce’s decision to reject Dillinger’s proposed quality code
771 for sour transport plate, ruling that Bohler was in-
structive. Id. at 1333–36. The Trade Court instructed
Commerce on remand “to further explain why its determi-
nation [was] reasonable in light of [the approach it imple-
mented] in Bohler, or if appropriate, reconsider its rejection
of Dillinger’s proposed quality code for sour transport
plate.” Id. at 1336.
Case: 24-1498 Document: 60 Page: 9 Filed: 10/06/2025

-- 9 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 10
In its fourth remand redetermination, Commerce de-
termined that the facts in Bohler were “analogous” to the
facts of this proceeding and thus it accepted Dillinger’s pro-
posed quality code 771 for sour transport plate.
J.A. 158–65. However, Commerce rejected Dillinger’s re-
quest on remand that Commerce reconsider its rejection of
Dillinger’s proposed code 759 for sour vessel plate, ruling
that the Trade Court had already sustained its rejection of
code 759 in Dillinger II. J.A. 164.
D.
Dillinger appealed to the Trade Court once more, again
challenging Commerce’s rejection of its proposed quality
code 759. AG der Dillinger Hüttenwerke v. United States,
672 F. Supp. 3d 1351 (Ct. Int’l Trade 2023) (Dillinger V).
Dillinger argued that because Commerce accepted Dil-
linger’s proposed quality code 771, Commerce should have
also accepted its proposed quality code 759 for sour pres-
sure vessel plate. Id. at 1355.
The Trade Court construed Dillinger’s argument as a
request for reconsideration of its August 2021 Order reject-
ing Dillinger’s proposed quality code 759 and ruled that
“factual distinctions” between the timeliness of the model-
match proposal at issue in Bohler versus Dillinger’s pro-
posal rendered reconsideration inappropriate. Id.
at 1355–56. Accordingly, the Trade Court sustained Com-
merce’s fourth remand redetermination. Id. at 1356, 58.
Dillinger appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(5).
STANDARD OF REVIEW
We review the Trade Court’s rulings de novo by “step-
ping into its shoes and applying the same standard of re-
view.” Vandewater Int’l Inc. v. United States, 130 F.4th
981, 991 (Fed. Cir. 2025) (quoting JTEKT Corp. v. United
States, 642 F.3d 1378, 1381 (Fed. Cir. 2011)). This court
must reverse determinations that are not supported by
Case: 24-1498 Document: 60 Page: 10 Filed: 10/06/2025

-- 10 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 11
substantial evidence or not in accordance with the law. Vi-
raj Grp. v. United States, 476 F.3d 1349, 1354 (Fed. Cir.
2007) (quoting 19 U.S.C. § 1516a(b)(1)(B)(i)). Substantial
evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
This court “review[s] Commerce’s rejection of submis-
sions as untimely under its own deadlines for abuse of dis-
cretion.” Tau-Ken Temir LLP v. United States, 147 F.4th
1363, 1371 (Fed. Cir. 2025).
D ISCUSSION
Dillinger raises two arguments on appeal. First, Dil-
linger argues that Commerce erred in rejecting its pro-
posed code 759 for sour pressure vessel plate. Appellant
Br. 22–36. Second, Dillinger argues that Commerce erred
in using Dillinger’s likely selling price as its cost of produc-
tion. Id. at 36–58. We address each argument in turn.
I.
Dillinger argues that Commerce acted inconsistently
by refusing to accept its proposed quality code 759 for sour
service pressure vessel plate yet accepting its proposed
quality code 771 for sour transport plate. Id. at 22. Ac-
cording to Dillinger, the “issues involving sour service pe-
troleum transport plate and sour service pressure vessel
plate are exactly the same,” so Commerce’s inconsistent
treatment of identical issues renders its determination ar-
bitrary and thus unlawful. Id. at 22–23.
Dillinger is correct that it submitted to Commerce the
same general evidence to support its proposed quality
codes 759 and 771, and Commerce ultimately accepted
code 771. J.A. 3077; J.A. 3086–88 (explaining that quality
code 759 is “analogous to” quality code 771 and “Dillinger
has already provided extensive information on the corro-
sive effects of sour petroleum products”). But Commerce
did not reject quality code 759 on the merits of the evidence
Case: 24-1498 Document: 60 Page: 11 Filed: 10/06/2025

-- 11 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 12
presented; rather, Commerce rejected quality code 759 as
untimely. J.A. 5958 (“Dillinger did not propose [quality
code 759] in the Dillinger Model Match Comments, even
though it appears to have been aware of such sour service
products at the time.”); August 2021 Order, J.A. 38–39; Dil-
linger V, 672 F. Supp. 3d at 1355–56. Dillinger proposed a
quality code for sour transport plate on June 2, 2016, dur-
ing the model-match comment period. J.A. 237–39. By
contrast, Dillinger did not propose quality code 759 until
its first supplemental questionnaire response, which oc-
curred after the comment period had closed, over three and
a half months after Dillinger’s model-match comments,
over three months after Commerce issued its final product
characteristics, over two months after Dillinger’s initial
questionnaire response, and about forty-five days before
the preliminary determination. J.A. 3077; J.A. 3086–88.
Proposed code 759 stands alone, given the untimeliness of
Dillinger’s proposal.
Further, Commerce acted within its discretion in re-
jecting Dillinger’s proposed quality code 759 as untimely.
“Commerce has discretion to establish and enforce time
limits for submitting information” in an investigation.
Goodluck India Ltd. v. United States, 11 F.4th 1335, 1342
(Fed. Cir. 2021); see Tau-Ken Temir LLP, 147 F.4th
at 1373–75 (discussing general considerations guiding
Commerce’s use of its discretion to reject untimely submis-
sions). As discussed above, Dillinger’s proposal was signif-
icantly late. And critical to this appeal is Dillinger’s
admission that the basis supporting its proposed additions
of quality codes 759 and 771 was the same. This shows
that Dillinger had the necessary information to propose
quality code 759 when it first proposed a quality code for
sour transport plate several months earlier, yet Dillinger
chose not to. Dillinger has offered no explanation for this
delay. Tau-Ken Temir LLP, 147 F.4th at 1374 (Commerce
may consider the “reasons for the submission’s untimeli-
ness.”).
Case: 24-1498 Document: 60 Page: 12 Filed: 10/06/2025

-- 12 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 13
Dillinger argues that its proposed code 759 was not un-
timely, relying on the Trade Court’s decision in Bohler. Dil-
linger argues that “a key holding in Bohler” is that
proposed model-match comments are not untimely even if
submitted after the comment period and after Commerce
issued its final product characteristics. Appellant Br. 32.
Dillinger also argues that Commerce’s notice of final prod-
uct characteristics invited Dillinger to use additional qual-
ity codes, and Dillinger reserved the right to propose
additional codes. Id. at 31–32.
Bohler is not binding authority on this court. In any
event, as the Trade Court correctly recognized, Dillinger’s
reliance on Bohler is misplaced given key “factual distinc-
tions” between Bohler and this case. Dillinger V,
672 F. Supp. 3d at 1355–56. The plaintiffs in Bohler
“raised their concerns at every turn” and proposed their
modification in their initial questionnaire responses “just
35 days after [Commerce] issued its revised model-match
methodology, four months prior to the” preliminary deter-
mination. Bohler, 324 F. Supp. 3d at 1352. Additionally,
Commerce solicited “additional clarifying information on
this issue.” Id. As discussed above, the same cannot be
said of Dillinger, who proposed code 759 much later, and
Commerce rejected this proposal shortly thereafter, rather
than soliciting additional information.
Dillinger’s remaining arguments are unavailing. Even
assuming Dillinger is correct that Commerce intended to
invite untimely proposals, which does not appear to be the
case, Commerce is not required to accept all untimely pro-
posals. Dillinger relies on boilerplate language that ap-
peared in Commerce’s notice of final product
characteristics but was notably absent from Commerce’s
first supplemental questionnaire, which Dillinger was re-
sponding to when it first proposed code 759. Further, there
is no indication that Commerce informed Dillinger that it
could submit proposals at any and all stages of the investi-
gation, regardless of the magnitude of the untimeliness of
Case: 24-1498 Document: 60 Page: 13 Filed: 10/06/2025

-- 13 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 14
the proposal. As to Dillinger’s reservation of rights, Dil-
linger has no authority to reserve the right to submit un-
timely proposals. Dongtai Peak Honey Indus. Co. v. United
States, 777 F.3d 1343, 1352 (Fed. Cir. 2015) (“It is not for
[respondent] to establish Commerce’s deadlines or to dic-
tate to Commerce whether and when Commerce actually
needs the requested information.” (cleaned up)). Com-
merce’s purported invitation and Dillinger’s asserted res-
ervation of rights do not support a finding that Commerce
relinquished its discretion to reject untimely model-match
proposals, especially when those proposals were received
several months later, as was Dillinger’s proposal of
code 759. Commerce maintained its discretion to enforce
time limits. Goodluck India, 11 F.4th at 1342.
In sum, we reject Dillinger’s argument that Com-
merce’s denial of proposed quality code 759 was arbitrary
and thus unlawful. The untimeliness of Dillinger’s pro-
posal is a sufficient explanation for why Commerce treated
quality code 759 different from quality code 771, even if
Dillinger’s evidence and argument in support of both codes
were largely the same.
II.
Dillinger argues that Commerce’s use of likely selling
price as facts otherwise available in its cost of production
analysis is unlawful. Appellant Br. 42–47. According to
Dillinger, the fact that non-prime plate is sold at a loss does
not in any way reduce the actual cost of producing that
plate, and 19 U.S.C. § 1677b(b)(3) requires Commerce to
calculate the actual cost of production. Id. at 42–43. Dil-
linger relies on Dillinger France to support its position. Id.
at 45.
In Dillinger France, we addressed whether Commerce’s
reliance on a respondent’s normal books and records, which
allocated cost based on likely selling price rather than ac-
tual cost, was proper. Dillinger France, 981 F.3d
at 1321–24. We held that Commerce’s reliance on
Case: 24-1498 Document: 60 Page: 14 Filed: 10/06/2025

-- 14 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 15
information reflecting “likely selling price,” rather than ac-
tual cost data, violated 19 U.S.C. § 1677b(f). Id. We rea-
soned that under § 1677b(f), Commerce may use an
exporter or producer’s records when the records “reasona-
bly reflect the costs associated with the production and sale
of the merchandise,” and respondent’s records indicating
“likely selling price” did not reasonably reflect cost of pro-
duction.3 Id.
Dillinger France also examined and relied on IPSCO,
Inc. v. United States, 965 F.2d 1056 (Fed. Cir. 1992), which
“held a method that ‘calculat[ed] costs for both limited-ser-
vice and prime products on the basis of their relative prices’
to be ‘an unreasonable circular methodology’ because it
‘contravened the express requirements of the statute which
set forth the cost of production as an independent standard
for fair value.’” 981 F.3d at 1322 (quoting IPSCO, 965 F.2d
at 1061). Dillinger France and IPSCO establish that likely
selling price does not reasonably reflect the cost of produc-
tion. Id. at 1321–24; IPSCO, 965 F.2d at 1059–61.
Appellees respond that Dillinger France and IPSCO
are inapplicable because neither case considered the use of
likely selling price as facts otherwise available under
19 U.S.C. § 1677e for missing production cost information.
3 Dillinger France stated that it was “unclear”
whether “Commerce’s calculation of normal value involved
determining constructed value” under 19 U.S.C.
§ 1677b(e), or cost of production under 19 U.S.C.
§ 1677b(b)(3). Dillinger France, 981 F.3d at 1321 n.1. “In
either event, . . . the alleged errors would affect either cal-
culation.” Id. Here, the parties address 19 U.S.C.
§ 1677b(b)(3), so we presume Commerce’s calculation of
normal value involved determining cost of production un-
der 19 U.S.C. § 1677b(b)(3).
Case: 24-1498 Document: 60 Page: 15 Filed: 10/06/2025

-- 15 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 16
U.S. Br. 37–41; Nucor Corp. and SSAB Enters. LLC
Br. 25–26.
While Appellees are correct that Dillinger France and
IPSCO did not address facts otherwise available under
19 U.S.C. § 1677e, nonetheless, the reasoning of both cases
applies here. Like the reasonableness requirement of
19 U.S.C. § 1677b(f), the information Commerce uses as
facts otherwise available under 19 U.S.C. § 1677e must be
“reasonable to use under the circumstances.” Statement of
Administrative Action, H.R. Doc. No. 103-316, at 869
(1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4198
(“SAA”).4 Additionally, the information Commerce uses as
facts otherwise available should be based on “that which is
most probative of the issue under consideration.” Id. Here,
the issue under consideration is cost of production under
19 U.S.C. § 1677b. Just as likely selling price does not “rea-
sonably reflect” cost of production, Dillinger France, 981
F.3d at 1321–24 (emphasis added), it is not reasonable for
Commerce to rely on likely selling price as facts otherwise
available for cost of production. The undisputed evidence
shows that Dillinger’s cost of producing prime plate is read-
ily available, and Commerce has not contested Dillinger’s
assertion that non-prime plate undergoes the same produc-
tion process as prime plate. J.A. 50 (“During the investiga-
tion, Dillinger provided the information necessary to
calculate the actual costs of production for prime prod-
ucts.”); J.A. 409–10 (explaining that non-prime plate is
identified “after the production process”); J.A. 6100 (“Non-
prime plate cannot be identified until the end of production
4 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 application.”
19 U.S.C. § 3512(d).
Case: 24-1498 Document: 60 Page: 16 Filed: 10/06/2025

-- 16 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 17
and therefore undergoes the exact same production steps
as prime plate.”).
Regardless of whether Commerce proceeds under
19 U.S.C. § 1677b(f), as in Dillinger France, or 19 U.S.C.
§ 1677e, as is the case here, the statutory scheme seeks to
compare cost of production to selling price. 19 U.S.C.
§ 1677b(b)(1); Dillinger France, 981 F.3d at 1321 n.1.
Thus, using likely selling price as facts otherwise available
under 19 U.S.C. § 1677e is an “unreasonable circular meth-
odology” for the same reasons as is setting cost of produc-
tion to likely selling price, as set forth in Dillinger France
and IPSCO. Dillinger France, 981 F.3d at 1321–24;
IPSCO, 965 F.2d at 1061. Under circumstances where
there are other facts available, the selling price of non-
prime plate cannot be the basis for measuring the fairness
of the selling price of non-prime plate. See IPSCO, 965 F.2d
at 1061.
To be clear, when relying on facts otherwise available,
Commerce is not strictly constrained by the standards ar-
ticulated in statutes governing the necessary but missing
information. This is so because, if the administrative rec-
ord contained all the information necessary to decide the
issue under consideration, there would be no informational
gap and thus no need for Commerce to resort to facts oth-
erwise available, i.e., facts other than those dictated by
statute. 19 U.S.C. § 1677e(a) (stating that Commerce shall
use “facts otherwise available” (emphasis added)). But,
when there is a gap to fill, there must be a reasonable rela-
tionship between the selected facts otherwise available and
the gap to be filled. Id. (stating that Commerce may use
“facts otherwise available in reaching the applicable deter-
mination,” i.e., the gap to be filled (emphasis added)); SAA,
H.R. Doc. No. 103-316, at 869, reprinted in 1994
U.S.C.C.A.N. 4040, 4198 (stating that Commerce’s selec-
tion of facts otherwise available must be “reasonable to use
under the circumstances”). Here, 19 U.S.C. § 1677b(b)(3)
is the relevant statute defining the necessary but missing
Case: 24-1498 Document: 60 Page: 17 Filed: 10/06/2025

-- 17 of 18 --

AG DER DILLINGER HUTTENWERKE v. US 18
information. So, while Commerce is not strictly con-
strained by 19 U.S.C. § 1677b(b)(3), this statute must in-
form whether Commerce’s selection of facts otherwise
available is reasonable. Considering the gap to be filled,
Commerce failed to meet the reasonableness requirement
in this case by using likely selling price as facts otherwise
available for cost of production, which, as far as the rele-
vant statute is concerned, are unrelated metrics. Dillinger
France, 981 F.3d at 1321–24; cf. IPSCO, 965 F.2d at 1059–
61 (concluding that 19 U.S.C. § 1677b(e) “expressly covers
actual production costs”).
We therefore vacate the Trade Court’s decision and re-
mand so that the Trade Court may instruct Commerce to
determine Dillinger’s cost of production in a manner con-
sistent with this opinion.
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For the reasons stated, we
vacate and remand.
VACATED AND REMANDED
COSTS
No costs.
Case: 24-1498 Document: 60 Page: 18 Filed: 10/06/2025

-- 18 of 18 --