AG der Dillinger Hüttenwerke v. United States

672 F. Supp. 3d 1351, 2023 CIT 187

Opinion

Slip Op. 23-187

UNITED STATES COURT OF INTERNATIONAL TRADE

AG DER DILLINGER HÜTTENWERKE,

Plaintiff,

and

THYSSENKRUPP STEEL EUROPE AG,

Plaintiff-Intervenor, Before: Leo M. Gordon, Judge

v.

UNITED STATES, Consol. Court No. 17-00158

Defendant,

and

NUCOR CORPORATION and SSAB ENTERPRISES LLC,

Defendant-Intervenors.

OPINION

[Commerce’s Fourth Remand Results sustained.]

Dated: December 21, 2023

Marc E. Montalbine, deKieffer & Horgan, PLLC, of Washington, D.C., for Plaintiff AG der Dillinger Hüttenwerke. With him on the brief were Gregory S. Menegaz, Alexandra H. Salzman, and Merisa A. Horgan.

Robert L. LaFrankie, Crowell & Moring, LLP of Washington, D.C., for Plaintiff-Intervenor thyssenkrupp Steel Europe AG. 1

1 Plaintiff-Intervenor thyssenkrupp Steel Europe AG did not file any comments on the

Fourth Remand Results. Consol. Court No. 17-00158 Page 2

Kara M. Westercamp, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice of Washington, D.C., for Defendant United States. With her on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Tara K. Hogan, Assistant Director. Of counsel was Ayat Mujais, Attorney, U.S. Department of Commerce, Office of Chief Counsel for Trade Enforcement and Compliance of Washington, D.C.

Jeffrey Gerrish, Schagrin Associates, of Washington, D.C., for Defendant-Intervenor SSAB Enterprises LLC. With him on the brief were Roger B. Schagrin, Luke A. Meisner, and Nicholas J. Birch. 2

Stephanie M. Bell, Wiley Rein LLP, of Washington, D.C., for Defendant-Intervenor Nucor Corporation. With her on the brief were Alan H. Price and Christopher B. Weld.

Gordon, Judge: This consolidated action involves challenges to the final

determination in the antidumping (“AD”) investigation conducted by the U.S. Department

of Commerce (“Commerce”) of certain carbon and alloy steel cut-to-length plate

(“CTL plate”) from the Federal Republic of Germany. See Certain Carbon and Alloy Steel

Cut-to-Length Plate from the Federal Republic of Germany, 82 Fed. Reg. 16,360 (Dep’t of

Commerce Apr. 4, 2017) (“Final Determination”), and accompanying Issues and Decision

Memorandum, A-428-844 (Mar. 29, 2017),

http://enforcement.trade.gov/frn/summary/germany/2017-06628-1.pdf (last visited this

date) (“Decision Memorandum”). 3

Before the court are Commerce’s Final Results of Redetermination Pursuant to

Court Remand, ECF No. 184 (“Fourth Remand Results”) filed pursuant to the court’s

2 Defendant-Intervenor SSAB Enterprises LLC also did not file any comments on the

Fourth Remand Results. 3 The court previously issued a partial judgment as to the Ilsenburger and Salzgitter

consolidated plaintiffs. See Slip Op. 23-160, ECF No. 197 (Nov. 15, 2023) (opinion granting partial judgment as to issues raised by consolidated plaintiffs). Consol. Court No. 17-00158 Page 3

remand order in AG der Dillinger Huttenwerke v. United States, 47 CIT ___, 648 F.

Supp. 3d 1321 (2023) (“Dillinger III”). The court presumes familiarity with the history of

this action. Plaintiff AG der Dillinger Hüttenwerke (“Dillinger”) challenges Commerce’s

decision not to revisit its rejection of Dillinger’s proposed quality code for sour service

pressure vessel plate, while Defendant-Intervenor Nucor Corporation (“Nucor”)

challenges Commerce’s determination to adjust its model match methodology to include

a separate quality code for sour transport plate in calculating Dillinger’s dumping margin.

See Pl. Dillinger’s Comments in Partial Opp’n to Final Results of Redetermination, ECF

No. 192 (“Dillinger Opp’n Comments”); Def.-Int. Nucor Corp.’s Comments on Final

Results of Redetermination, ECF No. 193 (“Nucor Opp’n Comments”); see also Def.’s

Resp. to Comments on Remand Redetermination, ECF No. 199 (“Def.’s Resp.”);

Pl. Dillinger Comments in Partial Support to Final Results of Redetermination, ECF

No. 200 (“Dillinger Support Comments”); Def.-Int. Nucor Corp.’s Comments in Support of

Final Results of Redetermination, ECF No. 201 (“Nucor Support Comments”). The court

has jurisdiction pursuant to Section 516A(a)(2)(B)(iii) of the Tariff Act of 1930,

as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii), 4 and 28 U.S.C. § 1581(c) (2018).

For the reasons set forth below, the court sustains the Fourth Remand Results.

4 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. Consol. Court No. 17-00158 Page 4

I. Standard of Review

The court sustains Commerce’s “determinations, findings, or conclusions” unless

they are “unsupported by substantial evidence on the record, or otherwise not in

accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, when reviewing

agency determinations, findings, or conclusions for substantial evidence, the court

assesses whether the agency action is reasonable given the record as a whole.

Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350–51 (Fed. Cir. 2006);

see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) (“The substantiality

of evidence must take into account whatever in the record fairly detracts from its weight.”).

Substantial evidence has been described as “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” DuPont Teijin Films USA v.

United States, 407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence has also been described as

“something less than the weight of the evidence, and the possibility of drawing two

inconsistent conclusions from the evidence does not prevent an administrative agency’s

finding from being supported by substantial evidence.” Consolo v. Fed. Mar. Comm’n,

383 U.S. 607, 620 (1966). Fundamentally, though, “substantial evidence” is best

understood as a word formula connoting reasonableness review. 3 Charles H. Koch, Jr.

& Richard Murphy, Administrative Law and Practice § 9.24[1] (3d ed. 2023). Therefore,

when addressing a substantial evidence issue raised by a party, the court analyzes

whether the challenged agency action “was reasonable given the circumstances Consol. Court No. 17-00158 Page 5

presented by the whole record.” 8A West’s Fed. Forms, National Courts § 3.6 (5th ed.

2023).

II. Discussion

On remand, as directed by the court in Dillinger III, Commerce “reconsidered its

rejection of Dillinger’s proposed quality code for sour service petroleum transport plate

(i.e., 771) in light of [its] analysis of the facts in [Bohler Bleche GMBH & Co. KG v. United

States, 42 CIT ___, 324 F. Supp. 3d 1344 (2018) (“Bohler”)].” Fourth Remand Results

at 3. Commerce examined the facts and decision in Bohler as compared to the facts and

circumstances in the present matter, and ultimately found that “the facts of this case are

analogous to those of Bohler.” Id. at 5. As a result, Commerce “reconsidered [its]

rejection of Dillinger’s proposed quality code for sour service petroleum transport plate

(i.e., 771) and … included this quality code in the CONNUMs used in the margin

calculations for Dillinger to account for commercially significant physical differences

between sour service petroleum transport plate and other steels designated specifically

for the transport of petroleum products.” Id. at 6. Consequently, “the final estimated

weighted-average dumping margin for Dillinger increas[ed] to 4.99 percent.” Id.; see also

Dillinger Opp’n Comments at 6 n.1 (“Dillinger’s revised margin in the final results of

redetermination has increased from 4.98% to 4.99%.”).

Dillinger does not challenge Commerce’s findings in the Fourth Remand Results,

but rather emphasizes that “Commerce Properly Determined That the Facts of This Case

Are Analogous to Those of Bohler.” Dillinger Opp’n Comments at 1. However, Dillinger

argues that “[i]n Light of Its Determination That the Facts of This Case Are Analogous to Consol. Court No. 17-00158 Page 6

Those of Bohler, Commerce Should Also Accept Dillinger’s Quality Code for Sour Service

Pressure Vessel Steel (Code 759).” Id. at 2. Acknowledging that the court has already

rejected Dillinger’s claim as to sour service pressure vessel steel, Dillinger maintains that

the court “Should Revise Its August 2021 Order and Remand Commerce’s Determination

Concerning the Quality Code for Sour Service Pressure Vessel Plate.” Id. at 7.

Specifically, Dillinger contends that a “key holding in Bohler is that the Court specifically

found that the plaintiffs’ proposed revisions to Commerce’s model-match methodology

were not untimely even though they were made after the initial comment period had

expired and Commerce had issued its final product characteristics.” Id. at 8 (citing Bohler,

324 F. Supp. 3d at 1352). Dillinger reasons that “[i]f such significant additions to the

model-match methodology [as those made in Bohler] cannot properly be considered

untimely, then the limited addition of a Quality code for sour service pressure vessel steel

as specifically permitted by the questionnaire instructions can certainly not be considered

untimely.” Id. at 4.

The Government disagrees and maintains that there is no basis for revisiting the

sour service pressure vessel plate issue that was previously decided by the court.

See Def.’s Resp. at 5–6. Defendant explains that Commerce found that Dillinger provided

a similar revision to the model match hierarchy used in Bohler and provided information

on the record like that submitted in Bohler to demonstrate the consistently higher costs

and net price for sour service petroleum transport plate. Id. Thus, based on the

information on the record and its similarities to the information submitted in Bohler,

Commerce included Dillinger’s proposed quality code for sour service petroleum transport Consol. Court No. 17-00158 Page 7

plate, i.e., 771, in the control numbers used in the margin calculations for Dillinger

to account for commercially significant differences. Id. at 6.

Defendant highlights that this Court’s remand order “only directed Commerce

on remand to reconsider its decision to reject Dillinger’s proposed quality code for sour

service petroleum transport plate, and not Dillinger’s proposed quality code for sour

service pressure vessel steel.” Id. at 5 (citing Dillinger III, 47 CIT at ___, 648 F. Supp. 3d

at 1333–36). In the Government’s view, the limited nature of the remand made sense

in light of the fact that the court had “already sustained Commerce’s rejection of Dillinger’s

proposed quality code for sour service pressure vessel steel.” Id. (citing August 2021

Order, ECF No. 121, which upheld rejection of Dillinger’s proposed quality code “because

it was not submitted within the time for submitting model match comments, nor did

Dillinger provide information during the investigation that would justify revisiting this

issue”). Commerce decided that it would not reconsider its “rejection of Dillinger’s

proposed quality code for sour service pressure vessel steel, given that the Court already

sustained Commerce’s rejection of this quality code.” Fourth Remand Results at 9 (citing

August 2021 Order).

As the parties acknowledge, the court has already sustained Commerce’s rejection

of Dillinger’s proposed quality code for sour service pressure vessel steel. See, e.g.,

Dillinger Opp’n Comments at 7 (recognizing that court would need to “revise its August

2021 Order” in order to grant Dillinger relief on this issue); Def.’s Resp. at 5 (citing August

2021 Order); Nucor Opp’n Comments at 2 n.1. Notably, the court did not direct

Commerce to reconsider this issue on remand, so Dillinger’s arguments on this issue Consol. Court No. 17-00158 Page 8

essentially amount to a request for reconsideration of the court’s August 2021 Order.

The court observes that Dillinger did not frame its arguments against the standard for

a motion for reconsideration. See, e.g., USCIT R. 59 (setting forth guidance for moving

for reconsideration of a court’s judgment); USCIT R. 52(b) (permitting parties to move

court to amend its findings and its judgment). Furthermore, while Dillinger’s arguments

highlight the similarities of its circumstances with those in Bohler, Dillinger does not

account for the factual distinctions specific to this issue that may justify differing

outcomes. As Defendant-Intervenor Nucor points out, Dillinger’s reliance on Bohler

is misplaced as “[i]n Bohler, the Court rejected the argument that plaintiffs’ model match

challenges were untimely.” Nucor Support Comments at 3. As the Bohler court

explained:

Plaintiffs raised their concerns at every turn. Plaintiffs proposed addition of a GRADE field to account for alloy content was submitted with their questionnaire responses on July 15, 2016, just 35 days after the Department had issued its revised model-match methodology [and] four months prior to the Department’s Preliminary Determination . . . . Commerce then reviewed Plaintiffs’ GRADE-field proposal and sought additional clarifying information on this issue in its September 14, 2016 supplemental questionnaire, which Plaintiff then provided. See Pls. Supp. Questionnaire Resp. Sec. D & E 7. The court will not now entertain the Government's argument that the model-match methodology was a closed issue prior to July 15, 2016.

Bohler, 42 CIT at ___, 324 F. Supp. 3d at 1352. “In contrast, here, Dillinger not only failed

to raise this issue in its product characteristic comments, but again failed to raise it in its

initial questionnaire response. This is a fundamental difference between the two

proceedings.” Nucor Support Comments at 3–4. Consol. Court No. 17-00158 Page 9

While the court maintains the inherent authority to reconsider its ruling sustaining

Commerce’s rejection of the proposed quality code for sour service pressure vessel steel,

Dillinger has not made the requisite showing to demonstrate that reconsideration

is appropriate here. Accordingly, the court rejects Dillinger’s challenge and will sustain

the Fourth Remand Results.

Curiously, despite Commerce’s remand resulting in an increase to Dillinger’s

calculated dumping margin, Nucor challenges the Fourth Remand Results, arguing that

Commerce’s determination is “unsupported and insufficiently explained.” See Nucor

Opp’n Comments at 2. Specifically, Nucor contends that “although Commerce asserts

that Dillinger has ‘provided information on the record to demonstrate the consistently

higher costs and net prices for sour service petroleum transport plate, along with

supporting documentation,’ the agency has provided no discussion or analysis of this

information.” Id. at 3 (quoting Fourth Remand Results at 5–6). Nucor further maintains

that Commerce failed to “provide any citation to the record to support its determination or

otherwise identify what information it was relying on or found to be persuasive.” Id.

Nucor also highlights that Commerce’s draft remand redetermination differed

significantly from the final determination in the Fourth Remand Results, and laments that

Commerce failed to “provide any explanation of why [its draft remand redetermination]

conclusion was no longer supported or what record evidence supported the opposite

conclusion.” Id. at 3–4. For instance, Nucor notes that “[i]n contesting Commerce’s

original determination before this Court, as well as challenging the agency’s draft remand

determination, Dillinger relies predominately on information and analysis that it never Consol. Court No. 17-00158 Page 10

presented to Commerce in the original investigation.” Id. at 4. Nucor maintains that

Commerce failed to “discuss the information on the record, identify the record evidence

it relied on, or analyze how this information supports its conclusion.” Id. at 6–7. Nucor

thus urges the court to conclude that “Commerce’s brief, uncited statements that Dillinger

provided certain information, without discussing what that information was or how it was

taken into consideration, does not provide the guidance and clarity required for there

to exist a rational connection between the facts found and the choices made.” Id. at 7.

Nucor’s arguments are unpersuasive. Commerce’s remand redetermination

explained why the facts of this action are analogous to Bohler. In particular, Commerce

stated that the respondent in Bohler “argued for a revision to the model-match hierarchy,

through the addition of two product characteristic fields (i.e., ‘grade’ and ‘process’)

to account for commercially significant physical differences, while Dillinger has similarly

proposed a revision to the model match hierarchy, through the additional quality product

characteristic code (i.e., 771), to account for the different physical characteristics of sour

service petroleum transport plate.” Fourth Remand Results at 5.

“Additionally, in Bohler, the respondent provided information on the record

to support the additional product characteristic to demonstrate the impact of alloy content

on the {cost of production} of its products, while Dillinger similarly provided information

on the record to demonstrate the consistently higher costs and net prices for sour service

petroleum transport plate, along with supporting documentation.” Id. at 5–6.

This supporting documentation included: (1) sales and cost information for products with

its proposed quality code, demonstrating the consistently higher net prices and costs Consol. Court No. 17-00158 Page 11

for sour service petroleum transport plate and other steels designated specifically for the

transport of petroleum products; and (2) documentation comparing the manufacturing

of sour service petroleum transport plate to other steels designated specifically for the

transport of petroleum products, as well demonstrating the unique physical properties

of sour service petroleum transport plate. Id. at 5; see Dillinger Section B Response and

accompanying home market sales database (July 15, 2016) (PD 5 194; CD 77, 88);

Dillinger Section C Response and accompanying U.S. sales database (July 15, 2016)

(PD 198; CD 95, 96); Dillinger Section D Response and accompanying cost database

(July 15, 2016) (PD 199; CD 103). As a result, Commerce reconsidered its rejection

of the proposed quality code for sour service petroleum transport plate and determined

to include the quality code of 771 “for Dillinger to account for commercially significant

physical differences between sour service petroleum transport plate and other steels

designated specifically for the transport of petroleum products.” Fourth Remand Results

at 6. Thus, contrary to Nucor’s argument, Commerce addressed why the facts of this

case are analogous to Bohler and that there was sufficient record evidence to support

this determination. Id. at 9.

Nucor also argues that Commerce relied on information and analysis that Dillinger

never presented to Commerce in the investigation. See Nucor Opp’n Comments at 5–6.

The court disagrees. While Dillinger provided more analysis of this issue in its briefing

5 “PD ___” refers to a document contained in the public administrative record, which is

found in ECF No. 23-5, unless otherwise noted. “CD ___” refers to a document contained in the confidential administrative record, which is found in ECF No. 23-6, unless otherwise noted. Consol. Court No. 17-00158 Page 12

before the Court, the information on which the analysis was based was already on the

record. See Dillinger Section B Response and accompanying home market sales

database (July 15, 2016) (PD 194; CD 77, 88); Dillinger Section C Response and

accompanying U.S. sales database (July 15, 2016) (PD 198; CD 95, 96); Dillinger Section

D Response and accompanying cost database (July 15, 2016) (PD 199; CD 103);

see also Nucor Opp’n Comments at 4 n.3 (“To be clear, Nucor is not claiming that Dillinger

has relied on information that was not on the record in the underlying investigation,

but instead that it has relied on information and analysis that was not presented or

identified as relevant to the agency in support of its argument regarding the model match

methodology.” (emphasis added)).

Given that Commerce reasonably found the facts of Bohler to be analogous to

the circumstances in this matter, and that Commerce reasonably explained why a similar

analysis and outcome should apply here in light of the court’s decision in Dillinger III,

the court will reject Nucor’s challenge and sustain the Fourth Remand Results.

III. Conclusion

For the foregoing reasons, Commerce’s Fourth Remand Results are sustained.

Judgment will enter accordingly.

/s/ Leo M. Gordon Judge Leo M. Gordon

Dated: December 21, 2023 New York, New York