Novolipetsk Steel Pub. Joint Stock Co. v. United States

• Decision Date: 13 April 2021
• Docket Number: Court No. 20-00031,Slip Op. 21-41
• Citation: 503 F.Supp.3d 1329
• Parties: 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.
• Court: U.S. Court of International Trade

503 F.Supp.3d 1329

NOVOLIPETSK STEEL PUBLIC JOINT STOCK COMPANY and NOVEX Trading (Swiss) SA, Plaintiffs,

v. UNITED STATES, Defendant,andSteel Dynamics, Inc. and Nucor Corporation, Defendant-Intervenors.

Slip Op. 21-41

Court No. 20-00031

United States Court of International Trade.

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 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.

OPINION AND ORDER

Kelly, Judge:

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 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 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. § 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 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 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 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 (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 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...