Novolipetsk Steel Public Joint Stock Company et al v. United States

Slip Op. 21-41
UNITED STATES COURT OF INTERNATIONAL TRADE
NOVOLIPETSK STEEL PUBLIC
JOINT STOCK COMPANY and
NOVEX TRADING (SWISS) SA,
Plaintiffs,
v.
UNITED STATES,
Defendant,
and
STEEL DYNAMICS, INC. and
NUCOR CORPORATION,
Defendant-Intervenors.
Before: Claire R. Kelly, Judge
Court No. 20-00031
OPINION AND ORDER
[Granting Defendant’s motion to amend the administrative record, and the index to
the administrative record, dismissing Plaintiffs’ complaint challenging the U.S.
Department of Commerce’s final determination in the 2017–2018 administrative
review of certain hot-rolled flat-rolled carbon-quality steel products from the Russian
Federation, dismissing Plaintiffs’ motion for judgment on the agency record and
motion for discovery.]
Dated: April 13, 2021
Valerie Ellis, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, D.C., argued
for plaintiffs Novolipetsk Steel Public Joint Stock Company and NOVEX Trading
(Swiss) SA. Also on the briefs were Kimberly Reynolds and Daniel L. Porter.
Kelly A. Krystyniak, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, D.C., argued for defendant. Also on the
briefs were Jeffrey Bossert Clark, Acting Assistant Attorney General, John V.
Coghlan, Deputy Assistant Attorney General for the Federal Programs Branch
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performing the duties and assignments of Acting Assistant Attorney General, Brian
M. Boynton, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and
Tara K. Hogan, Assistant Director. Of counsel were Brandon J. Custard and Daniel
J. Calhoun, Attorneys, Office of the Chief Counsel for Trade Enforcement and
Compliance, U.S. Department of Commerce, of Washington, D.C.
Luke A. Meisner, 	Schagrin Associates, of Washington, D.C., argued for defendant-
intervenor Steel Dynamics, Inc. Also on the briefs were Roger B. Schagrin, Elizabeth
J. Drake, and Kelsey M. Rule.
Cynthia C. Galvez, Wiley Rein LLP, of Washington, D.C., argued for defendant-
intervenor Nucor Corporation. Also on the briefs were Alan H. Price and Christopher
B. Weld.
Kelly, Judge: This matter is before the court on several motions. Pursuant to
U.S. Court of International Trade (“USCIT”) Rule 56.2, Plaintiffs Novolipetsk Steel
Public Joint Stock Company (“NLMK”) and NOVEX Trading (Swiss) SA’s (“NOVEX”)
move for judgment on the agency record challenging the U.S. Department of
Commerce’s (“Commerce”) final determination in the 2017–2018 administrative
review of the antidumping duty (“ADD”) order covering certain hot-rolled flat-rolled
carbon-quality steel products (“HRC”) from the Russian Federation (“Russia”). 	See
[NLMK & NOVEX’s 56.2] Mot. J. Agency R. & accompanying Br. Supp. 56.2 Mot. J.
Agency R., Aug. 10, 2020, ECF No. 44 (“Pls.’ 56.2 Mot.” and “Pls.’ 56.2 Br.”); see also
[HRC] From [Russia], 85 Fed. Reg. 299 (Dep’t Commerce Jan. 3, 2020) (final results
of [ADD] admin. review; 2017–2018) (“Final Results”); Compl. ¶ 1, Mar. 4, 2020, ECF
No. 15. Plaintiffs also move to compel completion of the administrative record, move
to supplement the record, and move for permission to conduct discovery for purposes
of completing and supplementing the record. See [Pls.’] Mot. to Compel Completion
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R. & Mot. Permission to Conduct Discovery at 1, Oct. 16, 2020, ECF No. 62 (“Pls.’
Mot. to Compel”).
Defendant, as well as Defendant-Intervenors Steel Dynamic, Inc. (“SDI”) and
Nucor Corporation (“Nucor”) (collectively, “Defendant-Intervenors”), move to dismiss
Plaintiffs’ complaint. 	See Def.’s Mot. Dismiss & Resp. to [Pls.’ 56.2 Mot.], Oct. 16,
2020, ECF No. 64 (“Def.’s Mot. & 56.2 Resp. Br.”); [SDI’s] Mot. Dismiss Pls.’ Compl.
& accompanying Memo. Supp. Mot. Dismiss, May 18, 2020, ECF No. 32 (“SDI’s Mot.
Dismiss & Supp. Br.”); [Nucor’s] Mot. Dismiss, May 22, 2020, ECF No. 33 (“Nucor’s
Mot. Dismiss”); Memo. Supp. [Nucor’s] Mot. Dismiss Pls.’ Compl., May 22, 2020, ECF
No. 33-2 (“Nucor’s Mot. Dismiss Br.”).
Defendant and Defendant-Intervenor contend that the court should dismiss
certain counts of Plaintiffs’ complaint for lack of subject matter jurisdiction. 	See
Def.’s Mot. & 56.2 Resp. Br. at 8–13; SDI’s Mot. Dismiss & Supp. Br. at 11–13; Nucor’s
Mot. Dismiss Br. at 7–12, 14–16. 	If any of Plaintiffs’ claims fall within this court’s
jurisdiction, Defendant and Defendant-Intervenors argue that Plaintiffs’ complaint
should be dismissed for failure to exhaust administrative remedies and for failure to
establish a case or controversy. See Def.’s Mot. & 56.2 Resp. Br. at 13–18, 28; SDI’s
Mot. Dismiss & Supp. Br. at 7–11; Nucor’s Mot. Dismiss Br. at 16–22; see also Reply
Supp. [SDI’s Mot. Dismiss & Supp. Br.] at 2–9, July 23, 2020, ECF No. 40 (“SDI’s
Reply Supp. Mot. Dismiss”). 	Moreover, Defendant opposes Plaintiffs’ motion to
compel, and moves for leave to amend the index of the administrative record and
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correct the record to include March 29, 2019 liquidation instructions from Commerce
to U.S. Customs and Border Protection (“CBP” or “Customs”) pertaining to NLMK’s
products. See Def.’s Mot. Leave to Amend Index of Admin. R., Nov. 6, 2020, ECF No.
65 (“Def.’s Mot. Leave to Amend”). 	For the following reasons, the court grants
Defendant’s motion for leave to amend the administrative record. 	The court also
grants 	Defendant’s 	and 	Defendant-Intervenors’ 	motions 	to 	dismiss 	Plaintiffs’
complaint. 	As such, the court dismisses Plaintiffs’ 56.2 motion for judgment on the
agency record, and dismisses Plaintiffs’ motion to compel, supplement, and conduct
discovery as moot.
BACKGROUND
On March 11, 2019, in response to requests from interested parties, Commerce
initiated an administrative review of the ADD order covering certain HRC products
from Russia, the period of review (“POR”) spanning December 1, 2017 through
November 30, 2018. 	See Compl. ¶¶ 5–6; see also Initiation of Antidumping and
Countervailing Duty Admin. Reviews, 84 Fed. Reg. 9,297, 9,308 (Dep’t Commerce
Mar. 14, 2019) (“Initiation Notice”). Commerce selected NLMK, Severstal PAO, and
Severstal Export GmbH to participate in the review as respondents. 	See Initiation
Notice, 84 Fed. Reg. at 9,300.
On April 9, 2019, NLMK submitted a letter to Commerce certifying that it had
no shipments of subject merchandise during the POR and requesting that Commerce
rescind 	its 	administrative 	review 	of 	NLMK 	in 	accordance 	with 	19 	C.F.R.
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§ 351.213(d)(3) (2019). 1 	See Compl. ¶ 9; see also Memo. Re: Certification of No
Shipments for [NLMK], PD 18, bar code 3816827-01 (Apr. 9, 2019). 2 	Commerce
issued a “no shipment inquiry” to CBP and confirmed that none of the respondents
had shipments of subject HRC during the POR. See Compl. ¶¶ 10–11; see also Memo.
Re: [CBP] No-Shipment Inquiry Instructions, PD 25, bar code 3858656-01 (July 7,
2019). 	On October 7, 2019, Commerce published the results of its preliminary
determination. Compl. ¶ 12; see also [HRC] from [Russia], 84 Fed. Reg. 53,408 (Dep’t
Commerce Oct. 7, 2019) (prelim. no shipments determination of [ADD] admin. review;
2017–2018) (“Prelim. Results”). Although Commerce “preliminary determine[d] that
NLMK, Severstal PAO, and Severstal Export GmbH had no shipments of subject
merchandise during the POR[,]” Commerce, citing agency practice, 3 found that it
1 Further citations to Title 19 of the Code of Federal Regulations are to the 2019
edition.
2 On April 10, 2020, Defendant submitted indices to the public and confidential
administrative records underlying Commerce's final determination. See ECF No. 27-
1. Defendant later filed a corrected proposed index to the public record. For purposes
of disposing of the pending motions, the court refers to the proposed index, located on
the docket at ECF No. 65-3. 	All references to administrative record documents in
this opinion are to the numbers Commerce assigned to the documents in the proposed
index.
3 Commerce cites various administrative proceedings as well as its reseller policy,
which states that:
[A]utomatic liquidation at the cash-deposit rate required at the time of
entry can only apply to a reseller which does not have its own rate if no
administrative review has been requested, either of the reseller or of any
producer of merchandise the reseller exported to the United States. If
(footnote continued)
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would not be appropriate to rescind the administrative review, and instead decided
“to complete the review and issue appropriate instructions to CBP based on the final
results[.]” 	See Prelim. Results, 84 Fed. Reg. at 53,411; 4 see also Antidumping &
Countervailing Duty Proceedings, 68 Fed. Reg. 23,954, 23,954 (Dep’t Commerce May
6, 2003) (notice of policy concerning assessment of antidumping duties) (“Reseller
Policy”). 	On January 3, 2020, Commerce published the Final Results, which stated
the Department conducts a review of a producer of the reseller’s
merchandise where entries of the merchandise were suspended at the
producer’s rate, automatic liquidation will not apply to the reseller’s
sales. If, in the course of an administrative review, the Department
determines that the producer knew, or should have known, that the
merchandise it sold to the reseller was destined for the United States,
the 	reseller’s 	merchandise 	will 	be 	liquidated 	at 	the 	producer’s
assessment rate which the Department calculates for the producer in
the review. If, on the other hand, the Department determines in the
administrative 	review 	that 	the 	producer 	did 	not 	know 	that 	the
merchandise it sold to the reseller was destined for the United States,
the reseller’s merchandise will not be liquidated at the assessment rate
the Department determines for the producer or automatically at the rate
required as a deposit at the time of entry. In that situation, the entries
of merchandise from the reseller during the period of review will be
liquidated at the all-others rate if there was no company-specific review
of the reseller for that review period.
Reseller Policy, 68 Fed. Reg. at 23,954; see also Prelim. Results, 84 Fed. Reg. at
53,411 & nn. 10, 16 (citations omitted).
4 Regarding assessment rates, the Prelim. Results state:
If we continue to find that NLMK, Severstal PAO, and Severstal Export
GmbH had no shipments of subject merchandise in the final results, we
will instruct CBP to liquidate any existing entries of merchandise
produced by NLMK, Severstal PAO, and Severstal Export GmbH, but
exported by other parties, at the rate for the intermediate reseller, if
available, or at the all-others rate.
Prelim. Results, 84 Fed. Reg. at 53,411.
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that “[t]he cash deposit rates for NLMK, Severstal PAO, and Severstal Export GmbH
will remain unchanged from the rate assigned to them in the most recently completed
review of those companies.” Compl. ¶ 14 (quoting Final Results, 85 Fed. Reg. at 301). 5
Plaintiffs commenced the present action under 28 U.S.C. § 1581(c) (2018), 6
seeking 	review 	of 	Commerce’s 	final 	determination 	pursuant 	to 	section
516A(a)(2)(A)(I) and 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C.
§ 1516a(a)(2)(A)(I) and § 1516a(2)(B)(iii) (2018). 7 	See Summons, Feb. 3. 2020, ECF
No. 1; Compl.; 8 see also Final Results, 85 Fed. Reg. 299. 	In Counts I and II of the
complaint, Plaintiffs allege that Commerce’s decision to complete the administrative
5 Regarding assessment rates, the Final Results state:
Further, because we continue to find in these final results that NLMK,
Severstal PAO, and Severstal Export GmbH had no shipments of subject
merchandise during the POR, any suspended entries that entered under
NLMK, Severstal PAO, and Severstal Export GmbH case numbers (i.e.,
at that company’s rate) will be liquidated at the all-others rate if there
is no rate for the intermediate company(ies) involved in the transaction.
Final Results, 85 Fed. Reg. at 301.
6 Further citations Title 28 of the U.S. Code are to the 2018 edition.
7 Further citations to the Tariff Act of 1930, as amended, are to the relevant
provisions of Title 19 of the U.S. Code, 2018 edition.
8 Before filing the complaint, Plaintiffs moved for expedited document production
under USCIT Rule 73.2(a), indicating that their “ability to seek judicial review is
frustrated by the incompleteness of the administrative record.” 	See Pls.’ Mot. to
Apply Rule 73.2(a) to Def.’s Produc. of Docs. & Mot. to Expedite Rule 73.2 Deadline
at 3, Feb. 20, 2020, ECF No. 9. The court denied the motion, observing the “motion
reveal[ed] Plaintiffs possess[ed] sufficient information to construct a complaint[,]”
and citing the availability of other procedural paths for Plaintiffs to pursue that
would not require the court to disrupt the usual course of litigation. 	See Memo. &
Order at 2, Feb. 27, 2020, ECF No. 14.
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review of NLMK despite determining that NLMK had no shipments for the POR, as
well 	as 	CBP’s 	assignment 	to 	NLMK 	of 	a 	company-specific 	case 	number 	and,
purportedly, the resultant assignment to NLMK of a company-specific rate, are
unsupported by the agency record and otherwise unlawful. 	See Compl. at 5–6
(Counts I–II). Count III of Plaintiffs’ complaint alleges that Commerce’s application
of a rate based on facts available with an adverse inference (“adverse facts available”
or “AFA”) is unsupported by the agency record and otherwise unlawful. 9 See id. at 6
9 In antidumping proceedings, Commerce estimates the “weighted average dumping
margin for each exporter and producer individually investigated” and the “all-others
rate 	for 	all 	exporters 	and 	producers 	not 	individually 	investigated.” 	19 	U.S.C.
§§ 1673b(d)(1)(A), 1673d(c)(1)(B)(i); see also 19 C.F.R. §§ 351.205, 351.210. The all-
others rate is the “amount equal to the weighted average of the estimated weighted
average dumping margins established for exporters and producers individually
investigated, 	excluding 	any 	zero 	and 	de 	minimis 	margins, 	and 	any 	margins
determined entirely under section 1677e of this title” (i.e., based on facts available).
19 U.S.C. § 1673d(c)(5); see also id. at § 1677e.
In 	proceedings 	involving 	a 	nonmarket 	economy, 	Commerce 	presumes
exporters and producers are under foreign government control with respect to export
activities 	and 	will 	assign 	a 	single 	“country-wide” 	rate 	unless 	a 	respondent
demonstrates it qualifies for a separate rate. See Yangzhou Bestpak Gifts & Crafts
Co. v. United States, 716 F.3d 1370, 1373 (Fed. Cir. 2013) (“Yangzhou”) (citing Sigma
Corp. v. United States, 117 F.3d 1401, 1405 (Fed. Cir. 1997)); see also 19 C.F.R.
§ 351.107(d) (1999).
In its initial ADD investigation of HRC from Russia, when Russia was
considered a nonmarket economy, Commerce selected Novolipetsk Iron & Steel
Corporation (“NISCO”) as a mandatory respondent. 	See [HRC] from Brazil, Japan,
and [Russia], 63 Fed. Reg. 56,607 (Dep't Commerce Oct. 22, 1998) (initiation of [ADD]
investigations); [HRC] from [Russia], 64 Fed. Reg. 9,312, 9,314 (Dep’t Commerce Feb.
25, 1999) (notice of prelim. determination of sales at less than fair value). However,
NISCO subsequently withdrew from participation in the investigation. 	See [HRC]
(footnote continued)
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(Count III). 	Counts IV through V of Plaintiffs’ complaint contests Commerce’s
application of its reseller policy in this administrative review as unsupported by the
agency record and otherwise unlawful, and avers that the application of the reseller
policy when reviewing a company subject to an all-others rate is unreasonable and
inconsistent with the requirements of the statute. See id. at 6–7 (Count IV–V). Count
VI of the complaint avers that Commerce’s reseller policy “unlawfully assigns
combination rates in market economy proceedings and frustrate[s] the remedial
nature of the statute.” See id. at 7 (Count VI).
On May 18 and May 22, 2020, respectively, Defendant-Intervenors SDI and
Nucor filed motions to dismiss the complaint. 	See generally SDI’s Mot. Dismiss &
Supp. Br.; Nucor’s Mot. Dismiss. On July 2 and July 7, 2020, Plaintiffs filed separate
from [Russia], 64 Fed. Reg. 38,626, 38,628 (Dep’t Commerce July 19, 1999) (notice of
final determination of sales at less than fair value). 	Commerce used total facts
available with an adverse inference to derive the Russia-wide rate because certain
respondents did not respond to Commerce’s request for information, and because
Commerce could not verify, inter alia, NISCO’s questionnaire response due to its
withdrawal. See id., 64 Fed. Reg. at 38,630. After granting Russia market economy
status, Commerce set the cash deposit rate equal to margins calculated in the final
determination of its initial investigation, using the 184.56 percent AFA-based Russia-
wide rate as the all-others rate. See id., 64 Fed. Reg. at 38,641; see also Termination
of the Suspension Agreement on [HRC] from [Russia], Rescission of 2013–2014
Administrative Review, and Issuance of [ADD] Order, 79 Fed. Reg. 77,455, 77,456
(Dep’t Commerce Dec. 24, 2014).
Parties and Commerce sometimes use the shorthand “AFA” or “adverse facts
available” to refer to Commerce’s reliance on facts otherwise available with an
adverse inference to reach a final determination. However, AFA encompasses a two-
part inquiry pursuant to which Commerce must first identify why it needs to rely on
facts otherwise available, and second, explain how a party failed to cooperate to the
best of its ability as to warrant the use of an adverse inference when “selecting among
the facts otherwise available.” See 19 U.S.C. § 1677e(a)–(b).
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responses to each motion. See Pls.’ Resp. [SDI’s] Mot. Dismiss, July 2, 2020, ECF No.
38 (“Pls.’ Resp. to SDI’s Mot. Dismiss”); Pls.’ Resp. Opp’n [Nucor’s] Mot. Dismiss Pls.’
Compl., July 7, 2020, ECF No. 39 (“Pls.’ Resp. to Nucor’s Mot. Dismiss”). On July 23
and July 28, 2020, respectively, SDI and Nucor filed replies in support of their
motions to dismiss. 	See SDI’s Reply Supp. Mot. Dismiss; [Nucor’s] Reply Br. Supp.
[Nucor’s Mot. Dismiss], July 28, 2020, ECF No. 43.
On August 10, 2020, Plaintiffs moved for judgment on the agency record. See
generally Pls.’ 56.2 Mot. On September 2, 2020, the court submitted questions to the
parties 	seeking 	clarification 	of 	issues 	related 	to 	the 	Court’s 	jurisdiction 	and
Commerce’s completion of the administrative review. Ct.’s Letter, Sept. 2, 2020, ECF
No. 45 (“Letter I”). The parties filed their responses to the court’s letter on September
30, 2020, 10 and replies on October 13, 2020. See [SDI’s] Resp. to [Letter I], Sept. 30,
2020, ECF No. 49 (“SDI’s Resp. to Letter I”); Def.’s Resp. to [Letter I], Sept. 30, 2020,
ECF No. 50 (“Def.’s Resp. to Letter I”); [Nucor’s] Resp. to [Letter I], Sept. 30, 2020,
ECF No. 51 (“Nucor’s Resp. to Letter I”); Pls.’ Resp. to [Letter I], Sept. 30, 2020, ECF
10 In the interim, Defendant-Intervenors moved to stay deadlines pending resolution
of their motions to dismiss, as well as for a twenty-one (21) day extension of current
deadlines for briefing the merits of this action. See generally Novolipetsk Steel Public
Joint Stock Co. v. United States, 44 CIT __, 474 F. Supp. 3d 1354 (2020). The court
dismissed the motion to stay as untimely because, despite having ample opportunity
to move for a stay, Defendant-Intervenors failed to do so until after Plaintiffs
prepared and submitted their motion for judgment on the agency record and
responses to the motions to dismiss. See id., 44 CIT at __, 474 F. Supp. 3d at 1357–
59. However, to accommodate the parties, the court extended the deadlines set forth
in the briefing schedule by seven (7) days. Id., 44 CIT at __, 474 F. Supp. 3d at 1358–
59.
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No. 52; [SDI’s] Reply Re: [Letter I], Oct. 13, 2020, ECF No. 58 (“SDI’s Reply Re: Letter
I”); [Def.’s] Reply Re: [Letter I], Oct. 13, 2020, ECF No. 59; [Nucor’s] Reply Re: [Letter
I], Oct. 13, 2020, ECF No. 60 (“Nucor’s Reply Re: Letter I”); Pls.’ Reply Re: [Letter I],
Oct. 13, 2020, ECF No. 61.
On October 16, 2020, Plaintiffs moved for permission to conduct discovery and
for a court order compelling completion and supplementation of the administrative
record. 	See 	generally 	Pls.’ 	Mot. 	to 	Compel. 	Shortly 	thereafter, 	Defendant-
Intervenors jointly responded to Plaintiffs’ 56.2 motion for judgment on the agency
record. 	See Def.-Intervenors’ Joint Resp. Br. Opp’n [Pls.’ 56.2 Mot.], Oct. 16, 2020,
ECF No. 63 (“Def-Intervenors’ Joint 56.2 Resp. Br.”). 	Defendant also filed its
response, and, in so doing, moved to dismiss Plaintiffs’ complaint. 	See generally
Def.’s Mot. & 56.2 Resp. Br. 	On November 23, 2020, Plaintiffs submitted a reply in
support of their 56.2 motion and response to Defendant’s motion to dismiss. 	Pls.’
Reply to Def.’s Mot. Dismiss & Resp. [Supp.] [Pls.’ 56.2 Mot.], Nov. 23, 2020, ECF No.
70 (“Pls.’ 56.2 Reply & Resp. Def.’s Mot. Dismiss”).
On December 18, 2020, the court held oral argument. See Oral Arg., Dec. 18,
2020, ECF No. 75 (“Oral Arg.”). During oral argument, it became apparent that the
parties disagreed as to whether Plaintiffs had been assigned a company-specific rate
as a result of Commerce’s decision to apply its reseller policy and complete the
administrative review. See, e.g., Oral Arg. at 00:16:00–00:19:10, 00:26:00–00:30:00;
but see Compl. ¶ 19 (“The notice of Final Results and corresponding customs
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instructions issued in connection with this administrative review assign a company-
specific 	case 	number 	to 	NLMK 	indicating 	the 	assignment 	of 	a 	corresponding
company-specific rate to NLMK.”). Thus, the court requested additional submissions,
seeking clarification regarding Commerce’s application of the reseller policy to the
underlying administrative proceeding, and enquiring whether the case was properly
before the court in light of any such clarifications. See Oral Arg. at 02:00:25–02:02:19;
see also Ct.’s Letter, Jan. 4, 2021, ECF No. 76 (“Letter II”). By January 26, 2021, the
court received all submissions related to questions set out in its letter to the parties.
See Def.’s Resp. to [Letter II], Jan. 19, 2021, ECF No. 79 (“Def.’s Resp. to Letter II”);
Def.-Intervenors’ Joint Resp. to [Letter II], Jan. 19, 2021, ECF No. 80 (“Def.-
Intervenors’ Joint Resp. to Letter II”); Pls.’ Resp. to [Letter II], Jan. 19, 2021, ECF
No. 81 (“Pls.’ Resp. to Letter II”); 11 Def.’s Reply to [Pls.’ Resp. to Letter II], Jan. 26,
2021, ECF No. 83 (“Def.’s Reply Re: Letter II”).
JURISDICTION AND STANDARD OF REVIEW
The 	asserted 	basis 	for 	jurisdiction 	is 	19 	U.S.C. 	§ 	1516a(a)(2)(A)(I) 	and
§ 1516a(2)(B)(iii), 	which, under 28 U.S.C. § 1581(c), grant the court authority to
review actions contesting a final determination in an administrative review. 	The
court shall hold unlawful any determination found to be “unsupported by substantial
evidence on the record, or otherwise not in accordance with law[.]” 19 U.S.C.
11 Pin citations to Plaintiffs’ response to Letter II reference the document’s external
pagination, with the first page being the caption and title to Plaintiffs’ response.
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§ 1516a(b)(1)(B)(i). “The party invoking the [court’s] jurisdiction bears the burden of
establishing it. However, [the court] must accept well-pleaded factual allegations as
true and must draw all reasonable inferences in favor of the claimant.” 	Juancheng
Kangtai Chem. Co. v. United States, 932 F.3d 1321, 1326 (Fed. Cir. 2019) (quoting
Hutchison Quality Furniture, Inc. v. United States, 827 F.3d 1355, 1359 (Fed. Cir.
2016)). “In ascertaining whether jurisdiction is proper, [the court] look[s] to ‘the true
nature of the action.’” Id. (quoting Norsk Hydro Can., Inc. v. United States, 472 F.3d
1347, 1355 (Fed. Cir. 2006)).
An agency enjoys a presumption of regularity as to the record it prepares. 12
See, e.g., Fund for Animals v. Williams, 245 F. Supp. 2d 49, 55–57 (D.D.C. 2003);
Pacific Shores Subd. v. U.S. Army Corps of Eng., 448 F. Supp. 2d 1, 5 (D.D.C. 2006)
(“Pacific Shores”); see also Giorgio Foods, Inc. v. United States, 35 CIT 297, 299–301,
755 F. Supp. 2d 1342, 1345–46 (2011) (citations omitted) (“In an administrative
review case, it is rare that a federal court will consider information outside of the
record submitted.”). 	However, a court may order completion or supplementation of
12 Pursuant to 19 U.S.C. § 1516a(b)(2)(A), unless otherwise stipulated by the parties,
the record for review shall consist of
(i) 	a 	copy 	of 	all 	information 	presented 	to 	or 	obtained 	by 	the
Secretary, 	the 	administering 	authority, 	or 	the 	Commission
during the course of the administrative proceeding, including all
governmental memoranda pertaining to the case and the record
of 	ex 	parte 	meetings 	required 	to 	be 	kept 	by 	[19 	U.S.C. 	§
1677f(a)(3)]; and
(ii) a copy of the determination, all transcripts or records of conferences
or hearings, and all notices published in the Federal Register.
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the record in light of clear evidence that the record was not properly designated or
the identification of reasonable grounds that documents considered by the agency
were not included in the record. See Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 419 (1971); see also, e.g., Pacific Shores, 448 F. Supp. 2d at 5–7.
DISCUSSION
I. 	Leave to Amend the Index to the Administrative Record
Defendant moves for leave to amend the index to the administrative record to
include previously omitted “liquidation instructions of [NLMK’s] products issued to
[CBP] on March 29, 2019[.]” 13 Def.’s Mot. Leave to Amend at 1–2; see also March 29,
2019 Liquidation Instructions to CBP, PD 51, bar code 4048144-01 (Mar. 29, 2019)
(“March 2019 Liquidation Instructions”). 	Plaintiffs oppose, urging that the court
treat Defendant’s motion as a responsive admission with respect to Plaintiffs’ motion
to compel completion and supplementation of the record, and requesting the court
otherwise deny Defendant’s motion as a prejudicial and unsupported attempt to
impair Plaintiffs’ right to conduct discovery. 	See Pls.’ Resp. [Def.’s Mot. Leave To
Amend] & Reply to Def.’s Opp’n [Pls.’ Mot. to Compel] at 3–13, Nov. 16, 2020, ECF
No. 69 (“Pls.’ Resp. to Mot. for Leave & Reply”); see also Pls.’ Mot. to Compel. For the
13 Defendant moves to amend the index to the public record, but because the index
before the court reflects the documents before Commerce during the administrative
review, amending the index is effectively the same as correcting the record. As such,
the court considers Defendant’s motion as a request to amend the index and to correct
the record.
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Court No. 20-00031 	Page 15
following reasons, the court grants Defendant’s motion for leave to amend the
administrative index and correct the administrative record.
Although there are legitimate concerns regarding Defendant’s certification of
the index to the administrative record, allowing leave to amend the index will not
prejudice Plaintiffs. 	Under USCIT Rule 7(b)(1)(B), a request for a court order must
be made by motion that, inter alia, states “with particularity the grounds for seeking
the order[.]” 	As Plaintiffs point out, Defendant’s initial explanation for failing to
include the March 2019 Liquidation Instructions is lacking. 14 	Def.’s Mot. Leave to
Amend at 2; but see Pls.’ Resp. to Mot. for Leave & Reply at 7–8. 	However, Defendant
later clarified during oral argument that the oversight was caused by counsel’s own
error, explaining that the omission resulted from a lapse in communication between
14 Defendant stated that the liquidation instructions were “inadvertently omitted
from the filed public record index.” 	Def.’s Mot. Leave to Amend at 2. 	According to
Defendant, the liquidation instructions “are typically the last record document and,
here, they were not caught-up to the record.” Id. Apparently as a result, Defendant
claims to have “not notice[d] the error when filing the record index.” See id. Plaintiffs
object because Defendant had been on notice for several months about the existence
of the omitted instructions by the time Defendant moved for leave, and yet the motion
arrives only after Plaintiffs moved for discovery. See Pls.’ Resp. to Mot. for Leave &
Reply at 6–7. Moreover, Plaintiffs allege Defendant predicates its motion on factual
misrepresentations. See id. at 7–9. According to Plaintiffs, the omitted instructions
are not “liquidation instructions of [NLMK’s] products . . . but are instead the
automatic liquidation instructions pertaining to those companies for which no review
was initiated.” Id. at 8. Plaintiffs assert that these automatic liquidation instructions
“are not typically ‘the last record document’ but rather, are one of the first.” Id. Thus,
Plaintiffs urge the court to deny Defendant’s motion for “fail[ure] to state with
particularity the grounds for seeking the order[.]” 	Id. at 7 (citing USCIT Rule
7(b)(1)(B)).
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Court No. 20-00031 	Page 16
Defendant and Commerce in the midst of counsel’s busy trial schedule. Oral Arg. at
00:09:02–00:09:42.
Plaintiffs assert that Defendant mischaracterized the omitted instructions as
liquidation instructions typically included at the end of the review, as opposed to
automatic liquidation instructions included at the beginning. See Pls.’ Resp. to Mot.
for Leave & Reply at 8. However, the court concludes that no prejudice results from
any such misstatement by Defendant because Plaintiffs have not established the
significance of the March 2019 Liquidation Instructions. Namely, Plaintiffs state
Plaintiffs ability to defend their interests was prejudiced by Commerce’s
decision to withhold the March 29, 2019 instructions from the record. As
Plaintiffs have said time and again, the information revealed in the
March 29, 2019 CBP instructions is material to Plaintiffs complaint and
indicates that other information has been omitted from the agency
record. In this litigation, Plaintiffs have been prejudiced by Defendant’s
failure to acknowledge the incompleteness of the administrative record
in April when Defendant filed the record with this Court. A timely
admission of incompleteness and the inclusion of this document on the
record would have affected the arguments and issues addressed in the
briefs. Had this document been on the record prior to briefing, Plaintiffs
could have required Defendant to address its substantive content,
rather 	than 	devoting 	resources 	to 	proving 	its 	existence. 	A 	timely
admission would have likely altered the scope and content of the two
dispositive motions filed by Defendant-Intervenors, both of which argue
that the record is complete and that Plaintiffs had notice of Commerce’s
actions.
Pls.’ Resp. to Mot. for Leave & Reply at 6. Notwithstanding expenditure of additional
resources, Plaintiffs do not clarify how the “substantive content” of the omitted March
2019 Liquidation Instructions relates to Commerce’s final determination. The March
2019 Liquidation Instructions do not contain information Commerce used to make a
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Court No. 20-00031 	Page 17
decision; rather, they reflect a decision that Commerce made. 	Moreover, despite
Plaintiffs’ insistence that the appearance of a company-specific case number in the
March 	2019 	Liquidation 	Instructions 	would 	have 	given 	NLMK 	notice 	as 	to
Commerce’s intent to complete the administrative review (and purportedly assign a
company-specific rate to NLMK), that information can be found in other record
documents. 	See Oral Arg. at 00:50:38–00:52:39; but see, e.g., Memo. Re: Draft
Customs Instructions, PD 34, bar code 3898208-01 (Oct. 9, 2019) (“October 9th CBP
Instructions”); Memo. Re: No Shipment Inquiry, PD 24, bar code 3856318-01 (July 1,
2019) (“July 1st No Shipment Inquiry”). 15 Consequently, Plaintiffs identify no harm
suffered 	as 	a 	result 	of 	Defendant’s 	omission 	of 	the 	March 	2019 	Liquidation
15 Defendant explained during oral argument that the omitted document is a
standard instruction directing automatic liquidation of entries except for any entries
relating to firms listed in paragraph three (i.e., NLMK and others), which would not
be new information to Plaintiffs given that the Preliminary Results announced that
a review of NLMK had been requested, and that such instructions directing CBP not
to liquidate entries for entities subject to an administrative review are standard. See
Oral Arg. at 00:09:42–00:10:47; see also March 2019 Liquidation Instructions, ¶¶ 2–
3, at 3. Plaintiffs submit that the company-specific case number in the March 2019
Liquidation Instructions would have alerted them to the fact that NLMK was
receiving a company-specific rate, enabling them to challenge Commerce’s refusal to
rescind the administrative review with respect to NLMK. See Oral Arg. at 00:50:38–
00:53:00 (arguing that the March 2019 Liquidation Instructions is the only document
that 	makes 	clear 	NLMK 	was 	assigned 	a 	company-specific 	case 	number 	and,
purportedly as a result, a company-specific rate). However, as the court will further
explain, Plaintiffs’ submission fails because: NLMK did not receive a company-
specific rate in this proceeding; Commerce indicated its intention to complete the
review 	in 	its 	preliminary 	determination; 	and, 	contrary 	to 	Plaintiffs’ 	position,
subsequent liquidation instructions to CBP included in the record do contain
information indicating that NLMK was assigned a company-specific case number.
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Court No. 20-00031 	Page 18
Instructions from the administrative index or the record before Commerce during the
administrative proceeding. 	Defendant and Commerce’s omission is the kind of
harmless procedural error that this Court has held should not constitute the basis for
setting aside agency action. Cf., e.g., AK Steel Corp. v. United States, 21 CIT 1265,
1273, 988 F. Supp. 594, 602–03 (1997).
Plaintiffs allege that Defendant’s motion is a deliberate attempt to mislead the
court in order to restore an appearance of regularity and obstruct disposition of
Plaintiffs’ motion to compel completion and supplementation of the record. Pls.’ Resp.
to Mot. for Leave & Reply at 4–6, 9. Specifically, Plaintiffs maintain that
Defendant has knowingly mischaracterized this document to make it
appear as though adding it to the record after publication of the final
determination is consistent with ordinary administrative practice. It is
a deliberate attempt to create the appearance of regularity where none
exits. 	The 	Court 	should 	not 	accept 	or 	validate 	Defendant’s 	false
representations by granting the Motion for Leave.
Id. at 9. 	However, in light of Defendant’s clarification during oral argument,
Plaintiffs’ position is supported only by speculation. And even if Plaintiffs correctly
suppose that Defendant or Commerce deliberately waited to submit this document, a
position for which Plaintiffs offer no support, Plaintiffs still fail to identify how they
have been harmed in a way that would support the court denying Defendant’s motion
for leave to amend the administrative record. 	Prejudice means more than pointing
to a mistake or even a deliberate act by the other side; prejudice results when, due to
an act or omission by the other side, a litigant has been deprived of an opportunity
which it cannot now be restored. 	Cf., e.g., Vietnam Ass’n of Seafood Exporters &
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Court No. 20-00031 	Page 19
Producers v. United States, 38 CIT __, __, Slip Op. 14-75 at 8 (June 26, 2014) (“The
court finds that granting the motion will not prejudice any of the parties because no
party will forgo any procedures to which it normally would be entitled.”); An Giang
Fisheries Imp. & Exp. Joint Stock Co. v. United States, 39 CIT __, __, 118 F. Supp.
3d 1368, 1373 (2015). 	Plaintiffs have not been foreclosed from advancing their
submissions that the administrative record was incomplete and that they did not
have notice of Commerce’s actions during the underlying proceeding; the court’s
decision to grant Defendant’s motion for leave to amend the index to the public record
now before the court says nothing about the veracity of Plaintiffs’ allegations
regarding Commerce’s actions during the course of the underlying administrative
review. Even if Plaintiffs were successful in arguing that inclusion of the March 2019
Liquidation Instructions was necessary for Commerce to support its determination,
and that absence of the instructions deprived Plaintiffs of the ability to make an
argument 	or 	otherwise 	detracted 	from 	the 	reasonableness 	of 	Commerce’s
determination, the proper remedy would be a remand so that Plaintiffs could argue
those points before Commerce. 	See JSW Steel, Inc. v. United States, 44 CIT __, __,
466 F. Supp. 3d 1320, 1327–34 (2020); see also Guy v. Glickman, 945 F. Supp. 324,
329 (D.D.C. 1996) (citations omitted)). 	Accordingly, the court grants Defendant’s
motion for leave to amend the index to the administrative record and correct the
record.
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Court No. 20-00031 	Page 20
II. 	Standing to Assert Claims Challenging the Completion of Review &
Application of Reseller Policy
Defendant and Defendant-Intervenor argue that Plaintiffs’ complaint should
be dismissed because Plaintiffs do not present a case or controversy for this court to
adjudicate. 	See Def.’s Mot. & 56.2 Resp. Br. at 7, 28 (“[G]iven that [P]laintiffs
certified that they had no entries during the period of review and do not contend that
they are a reseller, it is difficult to discern whether they have an injury-in-fact.”); Def-
Intervenors’ Joint 56.2 Resp. Br. at 7 (citing, inter alia, SDI’s Resp. to Letter I at 4–
5; Nucor’s Resp. to Letter I at 2–6, 8–18; SDI’s Reply Re: Letter I; Nucor’s Reply Re:
Letter I at 1–6)) (“[B]ecause there is no ‘case or controversy’ at issue in this action,
Plaintiffs’ complaint should be dismissed for being moot.”); see also Def.’s Resp. to
Letter II at 9–10; Def.-Intervenors’ Joint Resp. to Letter II at 7–9. 	Namely,
Defendant 	and 	Defendant-Intervenor 	submit 	that 	the 	gravamen 	of 	Plaintiffs’
complaint arises out of the mistaken impression that Commerce’s refusal to rescind
the underlying review resulted in NLMK receiving a company-specific rate. See, e.g.,
Def-Intervenors’ Joint 56.2 Resp. Br. at 7; Nucor’s Mot. Dismiss Br. at 19–22
(“. . . Commerce’s completion of its review as to NLMK had the same effect on the
company as a rescission of the review on the company[.]”); SDI’s Reply Supp. Mot.
Dismiss at 2–5 (arguing the entire action should be dismissed because it is based on
a 	fundamental 	misunderstanding 	of 	Commerce’s 	final 	determination); 	Def.-
Intervenors’ Joint Resp. to Letter II at 7–9; Def.’s Resp. to Letter II at 4–10 (clarifying
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Court No. 20-00031 	Page 21
that NLMK did not receive a company-specific rate). 16 	Contrary to Plaintiffs’
averments, Defendant and Defendant-Intervenors insist that “[i]f NLMK received an
individual rate in a prior review, it would continue to retain the individual rate upon
the publication of the notice of final results for this review.” Def.’s Resp. to Letter I
at 8 (citing, inter alia, Parkdale Int’l, Ltd. v. United States, 31 CIT 1229, 508 F. Supp.
2d 1338 (2007) (“Parkdale II”)); see also, e.g., SDI’s Resp. to Letter I at 10 (describing
NLMK’s contention that the purported NLMK specific rate assigned in this review
would replace any individual rate assigned in the 2016–2017 review as “categorically
false.”); Nucor’s Resp. to Letter I at 14 (“. . . Nucor concurs with SDI that if NLMK
had received an individual rate in a prior review, it would retain that rate despite the
completion of this review.”). Plaintiffs counter that standing “cannot be evaluated in
a vacuum” and maintain that “[w]hen Congress has extended standing by statute,”
the question of whether NLMK has standing to challenge Commerce’s application of
16 Although Defendant’s brief could be construed to implicitly acknowledge that
NLMK received a company-specific rate, see Def.’s Mot. & 56.2 Resp. Br. at 28
(“[P]laintiffs have made no assertion or showing that they have suffered any injury
as a result of CBP assigning a company-specific rate.”), Defendant has made clear in
its filings that NLMK did not receive a company-specific rate. See, e.g., Def.’s Resp.
to Letter II at 9–10 (citations omitted) (“The previously determined rate applicable to
NMLK is the all-others rate published in the final determination as reflected in the
order . . . Put simply, the assessed rate would not have changed – NLMK would be
assessed either way at the all other’s rate.”); see also Def.’s Resp. to Letter I at 8
(citation omitted) (“If NLMK received an individual rate in a prior review, it would
continue to retain th[at] individual rate upon the publication of the notice of final
results for this review.”).
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Court No. 20-00031 	Page 22
the reseller policy “is evaluated under the zone of interests test[.]” 	Pls.’ Resp. to
Letter II at 7–8 (citing Allen v. Wright, 468 U.S. 737 (1984); Bennett v. Spear, 520
U.S. 154 (1997)). For the following reasons, Counts I and II of Plaintiffs’ complaint,
as well as Counts IV through VI, 17 are dismissed for lack of standing.
The Constitution constrains the federal courts’ jurisdiction to cases which
involve 	“actual 	cases 	or 	controversies,” 	and 	standing 	constitutes 	part 	of 	this
limitation. 	Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37–38 (1976) (“No
principle is more fundamental to the judiciary’s proper role in our system of
government than the constitutional limitation of federal-court jurisdiction to actual
cases or controversies.”); see also U.S. CONST. art. III, § 2, cl. 1. “[T]he core component
of 	standing 	is 	an 	essential 	and 	unchanging 	part 	of 	the 	case-or-controversy
requirement of Article III.” 	See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992) (citation omitted). 	To establish standing, a plaintiff must satisfy three
elements. 	First, it must have suffered an “injury in fact,” that is, “an invasion of a
legally protected interest” that is “concrete and particularized” and “actual or
imminent, not ‘conjectural’ or ‘hypothetical[.]’” Id. at 560 (citations omitted). Second,
a causal connection must exist between the injury and the conduct complained of. Id.
17 Neither Plaintiffs’ complaint nor their subsequent filings makes clear whether
Counts IV through VI are facial or as applied challenges. The court dismisses Counts
IV through VI of Plaintiffs’ complaint for lack of standing to the extent that they
present an “as-applied” challenge to Commerce’s reseller policy. If Counts IV through
VI 	present 	a 	challenge 	to 	Commerce’s 	liquidation 	instructions, 	the 	court 	also
dismisses for lack of standing.
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Court No. 20-00031 	Page 23
Third, the plaintiff must show a likelihood that the injury can be redressed by a
favorable court decision. Id. at 561.
Plaintiffs lack standing with respect to Counts I and II of the complaint, as
well as Counts IV through VI to the extent that these latter claims present an “as
applied” challenge to Commerce’s reseller policy, because, contrary to Plaintiffs’
claims, Commerce did not assign NLMK a company-specific rate. See, e.g., Pls.’ 56.2
Br. at 9 (“Commerce’s issuance of Final Results, manufacturer-specific assessment
rate, and company-specific deposit rate to NLMK not based on a review of subject
entries during the POR and the determinations reached is unlawful.”). Commerce’s
decision to complete the administrative review pursuant to its reseller policy and to
publish its final determination does not change NLMK’s assessment rate and cash
deposit requirements. 18 As Defendant-Intervenors point out, the Final Results state
that the “[t]he cash deposit rate[ ] for NLMK . . . will remain unchanged from the rate
assigned to [it] in the most recently completed review[.]” See 85 Fed. Reg. at 301; but
see Compl. ¶¶ 19–20, 27. Underlying Plaintiffs’ objection to the Final Results appears
to be Plaintiffs’ belief that CBP’s assignment of a company-specific case number
18 Plaintiffs’ objection to the Reseller Policy as applied in this case appears to include
an objection to Commerce’s decision to complete the review in furtherance of the
stated objectives of the policy. 	Although the clarification of the Reseller Policy was
published in 2003, see generally 68 Fed. Reg. 23,954, in 2010, Commerce announced
that it would be “more consistent with the May 2003 clarification not to rescind the
review” in cases where there are no shipments. Magnesium Metal From the Russian
Federation, 75 Fed. Reg. 56,989, 56,990 (Dep’t Commerce Sept. 17, 2010) (final
results of [ADD] admin. review) (“Magnesium Metal”).
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Court No. 20-00031 	Page 24
necessarily reflects receipt of a company-specific rate. 	See Pls.’ Resp. to SDI’s Mot.
Dismiss at 14–16. 	Responding to the court’s request for further clarification on the
matter, Plaintiffs point to the following statement contained within Commerce’s
Antidumping Manual:
Companies for which a cash deposit rate has been assigned will have
their own profile in the module (at the nine-digit level from the -001
suffix and above), which identifies their respective applicable rate and a
date 	that 	indicates 	when 	that 	rate 	became 	effective. 	Absent 	the
assignment of a company-specific rate, merchandise must enter under a
general profile in the module (usually designated with the -000 suffix).
Pls.’ Resp. to Letter II at 4 (citing Antidumping Manual, U.S. Dep’t of Commerce,
Int’l 	Trade 	Admin. 	(“AD 	Manual”) 	(2015), 	available 	at
https://web.archive.org/web/20180417165209/https://enforcement.trade.gov/admanu
al/index.html (last visited Apr. 8, 2021)). 	However, the excerpt quoted by Plaintiffs
does not support their position. That a company with its own rate will have its own
case number does not necessarily mean that a company with its own case number
has a company-specific rate. Further, as Defendant counters, the AD Manual states
that it “is for the internal training and guidance of Enforcement and Compliance
(E&C) personnel only . . . [and] cannot be cited to establish [Commerce’s] practice.”).
See Def.’s Reply Re: Letter II at 3 (quoting, inter alia, AD Manual, ch. 1, at 1; Bebitz
Flanges Works Private Ltd. v. United States, 44 CIT __, __, 433 F. Supp. 3d 1309,
1323–24 (2020)). Defendant attests that “[i]f NLMK received an individual rate in a
prior review, it would continue to retain th[at] individual rate upon the publication
of the notice of final results for this review.” See Def.’s Resp. to Letter I at 8 (citing
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Court No. 20-00031 	Page 25
inter alia, Parkdale II, 31 CIT 1229, 508 F. Supp. 2d 1338). 	Thus, any company-
specific rate assigned in the previous review would carry forward. See id.
Indeed, assigning a company-specific rate to NLMK would contradict the policy
underlying Commerce’s methodology. As explained in Parkdale II, “Commerce has a
stated policy that ‘company-specific assessment rates must be based on the sales
information of the first company in the commercial chain that knew, at the time the
merchandise was sold, that the merchandise was destined for the United States.’” 31
CIT at 1231, 508 F. Supp. 2d at 1343 (quoting Antidumping & Countervailing Duty
Proceedings, 63 Fed. Reg. 55,361, 55,362 (Dep’t Commerce Oct. 15, 1998) (notice and
request for comment on policy concerning assessment of antidumping duties)). 	“By
identifying 	the 	party 	that 	had 	knowledge 	of 	the 	destination 	of 	the 	subject
merchandise, Commerce determines which entity was the ‘price discriminator’ that
engaged in the dumping, and hence which company’s dumping margin should apply
to a given entry.” Id. (citing Reseller Policy, 68 Fed. Reg. at 23,960). Here, Commerce
determined that none of the respondents had shipments of subject merchandise
during the POR. 	See Final Results, 85 Fed. Reg. at 301. 	Since there is no sales
information upon which to calculate a dumping margin, it follows that Commerce
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Court No. 20-00031 	Page 26
could not have calculated a company-specific rate for NLMK in this review. 19 Nor do
the Final Results indicate that NLMK received a company-specific rate. 	See
generally, 85 Fed. Reg. 299. Instead, as Defendant explains, Commerce views it
necessary to complete the administrative review out of concern that, under 19 U.S.C.
§ 1675(a)(2)(C), Commerce would otherwise be unable to apply the reseller policy to
entries of unknown resellers that later surface, 20 and would instead be required to
liquidate at the entered rate— which may or may not be the appropriate rate for that
POR under the reseller policy. Oral Arg. at 00:30:00–31:28:00, 01:27:30–01:30:27.
Commerce did not calculate and assign a company-specific rate for NLMK. 21
Thus, NMLK’s claims challenging the completion of the review—or the application of
19 To conclude otherwise would require the court to presume without evidence that
Commerce here intentionally disregards its own policy and flouts its statutory duties
under 19 U.S.C. § 1675(a)(2) by inventing a company-specific dumping margin—
without any sales information—in order to establish a company-specific rate for
NLMK. 	The court declines to do so. 	See Am-Pro Protective Agency, Inc. v. United
States, 281 F.3d 1234, 1238–43 (Fed. Cir. 2002).
20 Plaintiffs themselves acknowledge how reseller entries may surface unbeknownst
to an exporter or producer. In arguing their point that the reseller policy would result
in the unlawful assignment of an AFA rate, Plaintiffs explain how an intermediary-
reseller may purchase large quantities of a given commodity during one POR and sell
during a subsequent POR. See Oral Arg. at 00:23:40–00:25:00.
21 Plaintiffs intimate that Commerce’s completion of the administrative review is
unlawful with respect to NOVEX specifically. 	See, e.g., Pls.’ 56.2 Br. at 22 (“This
required fact pattern that is particularly problematic for plaintiffs, given that all of
NLMK’s exports of hot rolled steel are made by its affiliated reseller NOVEX, who is
also a plaintiff to this action.”). 	Insofar as Plaintiffs’ reference to NOVEX amounts
to an attempt at argumentation, it is perfunctory and thus waived. See, e.g., Home
Prods. Int’l, Inc. v. United States, 36 CIT 665, 673, 837 F. Supp. 2d 1294, 1301 (2012)
(citations omitted).
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Court No. 20-00031 	Page 27
the reseller policy—and the purported assignment of a company-specific rate have
lost their character as live controversies; adjudicating those claims would result in
the sort of inappropriate advisory opinion “on abstract propositions of law” that
Courts must avoid. See Hall v. Beals, 396 U.S. 45, 48 (1969). 22 For these reasons, in
addition to the reasons set forth below, the court dismisses NLMK’s complaint. 23
22 Plaintiffs’ apparent position that the statute permits interested parties the ability
to seek out declarations of lawfulness from the court absent a showing that there is a
case or controversy is reductive and incorrect. Plaintiffs submit that 28 U.S.C. § 2643
indicates Congress’s desire for the Court to review Commerce’s actions and declare
whether or not they are lawful, which is the relief Plaintiffs seek in this proceeding.
See Oral Arg. at 01:20:07–01:21:00 (citing 28 U.S.C. § 2643); see also Summons at 1
(asserting 19 U.S.C. § 1516a(d) and 28 U.S.C. § 2631(c) as the basis for standing).
Plaintiffs also assert that the zone of interest test applies when determining whether
NLMK has standing to appear before the court is misplaced. See Pls.’ Resp. to Letter
II at 7–8 (citations omitted). Irrespective of whether Plaintiffs can show that NLMK
has statutory standing, such a showing does not obviate constitutional constraints on
Article III Courts to adjudicate actual cases and controversies. Cf. Lexmark Int’l, Inc.
v. Static Control Components, Inc., 572 U.S. 118, 125–32 (2014). As such, any request
for relief relating to Plaintiffs’ position that the court may declare the lawfulness of
Commerce’s actions even absent a case or controversy fails. 	See, e.g., Compl. ¶ 1
(“Additionally, Plaintiffs seek a judicial determination regarding the lawfulness of
Defendant’s action taken in the underlying administrative proceeding. Plaintiffs
request an award of injunctive and declaratory relief from this Court.”).
23 Defendant and Defendant-Intervenors also argue that any claims properly before
the court pursuant to 28 U.S.C. § 1581(c) would nevertheless be dismissed because
Plaintiffs failed to exhaust their administrative remedies. 	See Def.’s Mot. & 56.2
Resp. Br. at 13–18; SDI’s Mot. Dismiss & Supp. Br. at 7–11; Nucor’s Mot. Dismiss Br.
at 16–19. Plaintiffs counter that they could not have exhausted their administrative
remedies due to lack of notice. 	See, e.g., Pls.’ Resp. to SDI’s Mot. Dismiss at 1–17;
Pls.’ Resp. to Nucor’s Mot. Dismiss at 11–12.
(footnote continued)
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Court No. 20-00031 	Page 28
Parties are required to exhaust administrative remedies before the agency by
raising all issues in their initial case briefs before Commerce. Dorbest Ltd. v. United
States, 	604 	F.3d 	1363, 	1375 	(Fed. 	Cir. 	2010) 	(“Dorbest”) 	(citing 	19 	C.F.R. 	§
351.309(c)(2), (d)(2); Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375
1383 (Fed. Cir. 2008)); see also ABB, Inc. v. United States, 920 F.3d 811, 818 (Fed.
Cir. 2019). However, the court has discretion not to require exhaustion if a party was
not afforded a full and fair opportunity to raise the issue before the agency. Qingdao
Taifa Group Co v. United States, 33 CIT 1090, 1093, 637 F. Supp. 2d 1231, 1236–37
(2009) (citing LTV Steel Co. v. United States, 21 CIT 838, 868–69, 985 F. Supp. 95,
120 (1997)); see also 28 U.S.C. § 2637(d); Agro Dutch Indus. Ltd. v. United States,
508 F.3d 1024, 1029 (Fed. Cir. 2007). Plaintiffs’ claim that NLMK should be excused
from having to exhaust its administrative remedies because it lacked notice of
Commerce’s intention to assign it a company-specific number and complete the
review is contradicted by record documents.
First, Commerce expressly contemplates completion of the administrative
review in the preliminary results. 	See Prelim. Results, 84 Fed. Reg. at 53,411
(“[c]onsistent with Commerce’s practice . . . it is not appropriate to rescind the review
with respect to NLMK . . . but, rather, to complete the review and issue appropriate
instructions to CBP based on the final results of this review.”). Second, for all of
Plaintiffs’ objections regarding the purportedly anomalous nature (and ministerial
significance) of Commerce’s assignment of a company-specific case number ending in
“002” to NLMK, Plaintiffs did not raise any concerns with respect to the case
number’s appearance next to “Novolipetsk Steel” in both the July 1, 2019 no shipment
inquiry to CBP as well as Commerce’s October 9, 2019 draft liquidation instructions.
See October 9th CBP Instructions at 1 & Attach. I; July 1st No Shipment Inquiry.
Given Commerce’s declaration in the Prelim. Results, as well as the appearance of a
company-specific number for NLMK in record documents—the importance of which
Plaintiffs themselves assign significant weight—it is evident that Plaintiffs were
afforded a full and fair opportunity to raise their concerns regarding Commerce’s
completion of the administrative review.
Therefore, any claims from Plaintiffs alleging that Commerce’s adjustment to
its 	application 	of 	the 	Reseller 	Policy—as 	illustrated 	in 	Magnesium 	Metal—is
inconsistent with the policy or otherwise unlawful should have been exhausted before
the agency. See, e.g., Magnesium Metal, 75 Fed. Reg. at 56,990 (“. . . we continue to
find that it is more consistent with the May 2003 clarification not to rescind the
review in part in these circumstances but, rather, to complete the review[.]”).
Nonetheless, the court need not reach these arguments because, as discussed,
Plaintiffs’ claims are dismissed for want of standing.
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Court No. 20-00031 	Page 29
III. 	The All-Others Rate
Defendant and Defendant-Intervenor argue that the court should dismiss
Count III of Plaintiffs’ complaint challenging the all-others rate as an untimely
attempt to challenge Commerce’s determination of the all-others rate. See SDI’s Mot.
Dismiss & Supp. Br. at 11–13; Nucor’s Mot. Dismiss Br. at 14 (concurring with SDI’s
contention, with respect to Count III of Plaintiffs’ complaint, that any challenge to
the all-others rate is time-barred); SDI’s Resp. to Letter I at 3; Def.’s Resp. to Letter
I at 3; Def.’s Mot. & 56.2 Resp. Br. at 12–13, 28–29. 	Plaintiffs object to any such
characterization of Count III of their complaint, arguing that “a plain reading of the
complaint makes clear that [Count III] challenges Commerce’s assignment of a
company-specific AFA rate to NLMK.” Pls.’ Resp. to SDI’s Mot. Dismiss at 16. The
court dismisses Count III’s challenge to the all-others rate.
As explained, Commerce did not assign NLMK a company-specific rate, let
alone an AFA rate. Instead, Commerce continued to assign to NLMK the all-others
rate in this proceeding. 	Final Results, 85 Fed. Reg. at 301. 	Thus, Count III of
Plaintiffs’ complaint is dismissed.
IV. 	Facial Challenge to the Reseller Policy
Insofar as any of the counts of Plaintiffs’ complaint present a facial challenge
to 	Commerce’s 	reseller 	policy 	or 	to 	Commerce’s 	implementing 	instructions,
Defendant and Defendant-Intervenor assert that the Court does not have subject
matter jurisdiction under 28 U.S.C. § 1581(c). See, e.g., Def.’s Mot. & 56.2 Resp. Br.
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Court No. 20-00031 	Page 30
at 9–12 (requesting the court dismiss any facial challenge as untimely and any
challenge 	to 	Commerce’s 	liquidation 	instructions 	for 	lack 	of 	subject 	matter
jurisdiction); Nucor’s Mot. Dismiss Br. at 8–16. According to Defendant-Intervenors,
Plaintiffs’ complaint cannot otherwise be heard under 28 U.S.C. § 1581(i) because
Plaintiffs failed to concurrently file a summons and complaint. See, e.g., Nucor’s Mot.
Dismiss Br. at 11, 15–16; SDI’s Resp. to Letter I at 1–2; see also USCIT Rule 3(a)(3).
Defendant adds that an action challenging the lawfulness of the reseller policy on its
face under § 1581(i) would also be untimely, given the two-year statute of limitations.
Def.’s Mot. & 56.2 Resp. Br. at 7, 9–11. 	Plaintiffs maintain that all of their claims
are properly commenced pursuant to 28 U.S.C. § 1581(c). 	Pls.’ 56.2 Reply & Resp.
Def.’s Mot. Dismiss at 1–4. 	To the extent that Counts IV through VI present facial
challenges to the reseller policy, 24 the claims are dismissed for lack of jurisdiction.
To commence an action pursuant to 28 U.S.C. § 1581(i), a party must
concurrently file a summons and complaint. 	USCIT Rule 3(a)(3). 	A 28 U.S.C.
§ 1581(i) civil action is time-barred unless it is commenced within two years after the
cause of action accrues. See 28 U.S.C. § 2636(i). Any facial challenge that Plaintiffs
present to the reseller policy “accrue[s] at the time the rule was published, not when
the [policy] is applied to [Plaintiffs.]” 	Parkdale II, 31 CIT at 1236–37, 508 F. Supp.
24 For reasons explained, whether or not a challenge to Commerce’s liquidation
instructions is properly commenced pursuant to 28 U.S.C. § 1581(c), the court lacks
jurisdiction over such a claim due to lack of standing.
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Court No. 20-00031 	Page 31
2d at 1347–48; see also Parkdale Int’l, Ltd. v. United States, 31 CIT 720, 491 F. Supp.
2d 1262 (2007) (“Parkdale I”).
To the extent that Counts IV through VI present a facial challenge to
Commerce’s Reseller Policy, the cause of action would have accrued May 6, 2003 when
Commerce published notice of clarification of its practice. See generally 68 Fed. Reg.
23,954. 	Plaintiffs have yet to commence an action in accordance with USCIT Rule
3(a)(3), well beyond two-years after the cause of action accrued. 	Plaintiffs suggest
that, in the event that jurisdiction under 28 U.S.C. § 1581(c) is not proper, the Court’s
holding in Parkdale I would counsel granting Plaintiffs leave to amend their
complaint, as opposed to dismissal. 	See Pls.’ Resp. to Nucor’s Mot. Dismiss at 7–8,
9–10 (citing Parkdale I, 31 CIT at 725–27, 491 F. Supp. 2d at 1269–70). However, in
Parkdale II, the Court found that plaintiff’s facial challenge to the reseller policy
could proceed under 28 U.S.C. § 1581(i) where defendant in that case failed to raise
statute of limitations as an affirmative defense. See 31 CIT at 1236–37 & n.6, 508 F.
Supp. 2d at 1347–48 & n.6. 	Here, Defendant raised statute of limitations in their
motion to dismiss, see Def.’s Mot. & 56.2 Resp. Br. at 7, 9–11, and Plaintiffs have not
moved to amend their complaint to plead 28 U.S.C. § 1581(i) as a basis for jurisdiction.
As a result, the court dismisses Plaintiffs’ complaint for lack of jurisdiction.
V. 	Motions for Discovery
As discussed, the court dismisses Plaintiffs’ complaint. Thus, Plaintiffs’ motion
for completion of the record, supplementation of the record, and discovery for
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Court No. 20-00031 	Page 32
purposes of completing and supplementing the record, is dismissed as moot. 	The
court has considered the remainder of Plaintiffs’ arguments and finds them to be
without merit.
CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendant’s motion for leave to amend the administrative
record is granted; and it is further
ORDERED that the amended administrative record is deemed filed; and it is
further
ORDERED that Defendant’s and Defendant-Intervenors’ motions to dismiss
are granted and Plaintiffs’ complaint is dismissed; and it is further
ORDERED that Plaintiffs’ motion for judgment on the agency record and
motion for discovery are dismissed. Judgment will enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	April 13, 2021
New York, New York
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