Slip Op. 20-58

          UNITED STATES COURT OF INTERNATIONAL TRADE



 NOVOLIPETSK STEEL PUBLIC JOINT
 STOCK COMPANY and NOVEX
 TRADING (SWISS) SA,

             Plaintiffs,

 v.
                                                   Before: Claire R. Kelly, Judge
 UNITED STATES,
                                                   Court No. 19-00194
             Defendant,

 and

 STEEL DYNAMICS, INC. and NUCOR
 CORPORATION,

              Defendant-Intervenors.


                            OPINION AND ORDER

[Granting Defendant and Defendant-Intervenors’ motions to dismiss for lack of
subject matter jurisdiction.]

                                                                Dated: May 1, 2020

Valerie Ellis, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, D.C., for
plaintiffs Novolipetsk Steel Public Joint Stock Company and NOVEX Trading (Swiss)
SA.

Joseph H. Hunt, Assistant Attorney General, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, of Washington, D.C., for defendant. With him
on the brief were Jeanne E. Davidson, Director, Tara K. Hogan, Assistant Director,
and Kelly A. Krystyniak, Trial Attorney. Of counsel was Brandon J. Custard,
Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S.
Department of Commerce, of Washington, D.C.
Court No. 19-00194                                                            Page 2

Roger B. Schagrin, Luke A. Meisner, and Kelsey M. Rule, Schagrin Associates, of
Washington, D.C., for defendant-intervenor Steel Dynamics, Inc.

Alan H. Price, Christopher B. Weld, Maureen E. Thorson, and Cynthia C. Galvez,
Wiley Rein LLP, of Washington, D.C., for defendant-intervenor Nucor Corporation.

      Kelly, Judge:    Before the court are Defendant the United States’ and

Defendant-Intervenors Steel Dynamics, Inc. and Nucor Corporation’s motions to

dismiss Plaintiffs’ complaint for lack of subject matter jurisdiction. See Def.’s Mot.

Dismiss, Dec. 23, 2019, ECF No. 19 (“Def.’s Br.”); Proposed Def.-Intervenors’ Mot.

Dismiss Pls.’ Compl., Nov. 21, 2019, ECF No. 18 (“Def.-Intervenors’ Br.”).1 Plaintiffs

Novolipetsk Steel Public Joint Stock Company (“NLMK”) and NOVEX Trading

(Swiss) SA (“NOVEX”) bring this action to challenge the U.S. Department of

Commerce’s (“Commerce” or “Department”) failure to determine an all others rate,

following Commerce’s determination that it would treat the Russian Federation

(“Russia”) as a market economy (“ME”) country and the United States’ extension of

permanent normal trading relations (“PNTR”) to Russia, in the antidumping duty

(“ADD”) order on hot-rolled flat-rolled carbon-quality steel products (“HRC”) from

Russia. See Compl. at ¶¶ 2–3, 6–42, Oct. 22, 2019, ECF No. 5; see also Termination

of the Suspension Agreement on [HRC] from [Russia], Rescission of 2013-2014




1 In its motion to dismiss, Defendant cites U.S. Court of International Trade

(“USCIT”) Rule 12(b)(6) as the basis to dismiss Plaintiffs' complaint. See Def.’s Br.
at 2. However, Defendant elaborates that the court lacks subject matter jurisdiction
and does not challenge the complaint for failing to state a claim.

6–13.
Therefore, the court understands Defendant to move under USCIT Rule 12(b)(1) to
dismiss Plaintiffs' complaint.
Court No. 19-00194                                                            Page 3

Administrative Review, and Issuance of [ADD] Order, 79 Fed. Reg. 77,455 (Dep’t

Commerce Dec. 24, 2014) (“ADD Order”). Plaintiffs allege that Commerce unlawfully

and erroneously failed to determine an all others rate in the ADD Order, following

Russia’s graduation to an ME country and the extension of PNTR, when it had,

instead, calculated a country-wide rate in the final determination. See Compl. at ¶¶

17–18, 26(a), 27–28. Plaintiffs also challenge the all others rate as arbitrary and

capricious, unsupported by substantial evidence, an abuse of agency discretion, and

exceeding express statutory limitations.

26(b), 29–34. Given the application

of the country-wide rate as an all others rate, Plaintiffs also contend Russian

exporters are treated less favorably than exporters in other former non-market

economy (“NME”) countries, resulting in unlawful discriminatory treatment.
 

26(c), 35–42.

      Defendant and Defendant-Intervenors, in their motions to dismiss, contend

that the court lacks subject matter jurisdiction to entertain Plaintiffs’ claims. See

Def.’s Br. at 2, 6–13; Def.-Intervenors’ Br. at 6–16. According to Defendant and

Defendant-Intervenors, Plaintiffs’ complaint is a challenge to the all others rate in

the   ADD      Order,    a    determination     reviewable     under     28    U.S.C.

§ 1581(c). See Def.’s Br. at 8–10; Def.-Intervenors’ Br. at 6–13. In the alternative,

Defendant and Defendant-Intervenors contend that even if the court has jurisdiction

under 28 U.S.C. § 1581(i), Plaintiffs’ challenge is untimely and barred by the statute

of limitations, because their cause of action accrued over two years prior to
Court No. 19-00194                                                               Page 4

commencing this action. See Def.’s Br. at 10–13; Def.-Intervenors’ Br. at 14–16.

Plaintiffs counter that jurisdiction lies under 28 U.S.C. § 1581(i), because they do not

contest a final determination by Commerce, but challenge Commerce’s alleged

discriminatory treatment and its administration and enforcement of the ADD laws,

which causes continuing harm. See Pls.’ Resp. Opp’n [Def.’s Br.] at 8–17, Jan. 27,

2020, ECF No. 23 (“Pls.’ Resp. Def.’s Br.”); Pls.’ Resp. Opp’n [Def.-Intervenors’ Br.] at

5–15, Dec. 27, 2019, ECF No. 20 (“Pls.’ Resp. Def.-Intervenors’ Br.”); see also Compl.

at ¶¶ 2–3. In addition, Plaintiffs aver that they timely initiated this challenge,

because their cause of action accrued within the statute of limitations. See Pls.’ Resp.

Def.’s Br. at 12–17; Pls.’ Resp. Def.-Intervenors’ Br. at 12–16.2 For the reasons that

follow, the court lacks jurisdiction over Plaintiffs’ claims and Defendant’s and

Defendant-Intervenors’ motions to dismiss are granted.

                                   BACKGROUND

      On October 22, 1998, Commerce initiated an ADD investigation on imports of

HRC from Russia, and selected, inter alia, Novolipetsk Iron & Steel Corporation



2   Plaintiffs also allege that Defendant intentionally misled the court in using
“Novolipetsk” as a short form to refer to three separate companies—NLMK, NOVEX,
and NISCO—and by mischaracterizing certain facts about Commerce’s investigation
of HRC from Russia. See Pls.’ Resp. Def.’s Br. at 1–8. Defendant acknowledges its
errors, explains that any mischaracterization was inadvertent, and notes that the
factual issues raised are not germane to the jurisdictional question. See Def.’s Reply
Supp. Mot. Dismiss at 8–11, Mar. 10, 2020, ECF No. 26. Given that, when the court
evaluates a motion to dismiss for lack of subject matter jurisdiction, it must accept
all undisputed allegations as true, Cedars-Sinai Med. Ctr. v. Watkins, 
11 F.3d 1573
,
1583–84 (Fed. Cir. 1993), Defendants’ recognition of its error nullifies any alleged
disagreement as to the relevant facts.
Court No. 19-00194                                                             Page 5

(“NISCO”)3 as a respondent. See Initiation of [ADD] Investigations: [HRC] from

Brazil, Japan, and [Russia], 63 Fed. Reg. 56,607 (Dep’t Commerce Oct. 22, 1998);

Notice of Prelim. Determination of Sales at [LTFV]; [HRC] from [Russia], 64 Fed.

Reg. 9,312, 9,314 (Dep’t Commerce Feb. 25, 1999) (“Prelim. Results”). Subsequently,

on March 1, 1999, NISCO informed Commerce by letter that it was withdrawing from

participation in the investigation. See Notice of Final Determination of Sales at

[LTFV]: [HRC] from Russia, 64 Fed. Reg. 38,626, 38,628 (Dep’t Commerce July 19,

1999) (“Final Results”). On July 12, 1999, Commerce entered into an agreement with

Russia’s Ministry of Trade to suspend the investigation (“Suspension Agreement”).

See Suspension of [ADD] Investigation: [HRC] from [Russia], 64 Fed. Reg. 38,642,

38,642 (Dep’t Commerce July 19, 1999). However, at the request of petitioners,

Commerce continued the investigation and made an affirmative final determination

of sales at LTFV. See Final Results, 64 Fed. Reg. at 38,627.4 Commerce calculated




3 According to Plaintiffs, NISCO was a state-owned enterprise and predecessor to

NLMK. See Pls.’ Resp. Def.’s Br. at 6.
4 Commerce used “total adverse facts available” to derive the Russia-wide rate,
because certain respondents did not respond to Commerce’s request for information
and Commerce could not verify, inter alia, NISCO’s questionnaire response due to its
withdrawal from the investigation. See Final Results, 64 Fed. Reg. at 38,630. The
phrase “total adverse facts available” or “total AFA” encompasses a series of steps
that Commerce takes to reach the conclusion that all of a party’s reported information
is unreliable or unusable and that as a result of a party’s failure to cooperate to the
best of its ability. Parties and Commerce sometimes use the shorthand “AFA” or
“adverse facts available” or “AFA” to refer to Commerce’s reliance on facts otherwise

                                                                  (footnote continued)
Court No. 19-00194                                                           Page 6

a country-wide, or Russia-wide, dumping margin of 184.56 percent and a weighted-

average dumping margin of 73.59 percent for Joint Stock Company Severstal, which

received a separate rate. See
 id., 64 Fed. 
Reg. at 38,641. The International Trade

Commission (“Commission”) also made an affirmative determination of material

injury. See [HRC] from Brazil and [Russia], 64 Fed. Reg. 46,951 (Int’l Trade Comm’n

Aug. 27, 1999). No ADD order issued.

      In 2002, Commerce announced that it would consider Russia an ME country

for purposes of applying U.S. antidumping laws. See Compl. at ¶ 11; see also 19

U.S.C. § 1677(18)(C) (“Any determination that a foreign country is a nonmarket

economy country shall remain in effect until revoked by the administering

authority.”). A decade later, in 2012, Russia became a member of the World Trade

Organization, and the United States extended PNTR.         See Russia and Moldova

Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012,

Pub. L. No. 112-208, 126 Stat. 1496; Proclamation 8920 of Dec. 20, 2012 to Extend

Nondiscriminatory Treatment (Normal Trade Relations) to the Products of [Russia]

and the Republic of Moldova, 77 Fed. Reg. 76,797 (Pres. Doc. Dec. 28, 2012); see also





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).
Court No. 19-00194                                                           Page 7

19 U.S.C. § 2434.5 On July 10, 2014, domestic interested parties asked by letter that

Commerce terminate the Suspension Agreement and impose antidumping duties on

HRC imports from Russia. See ADD Order, 79 Fed. Reg. at 77,455. Soon after, on

August 29, 2014, Commerce, at the request of Russian HRC producers, initiated an

administrative review of the Suspension Agreement, for the period of July 1, 2013 to

June 30, 2014. See
 id. Following a 
letter sent to Russia stating Commerce’s intent

to terminate the Suspension Agreement, Commerce terminated the Suspension

Agreement, effective December 19, 2014. See
 id., 79 Fed. 
Reg. at 77,456. Commerce

then rescinded the administrative review and issued an ADD order. See
 id. In the
ADD Order, Commerce set the cash deposit rate equal to the margins calculated in

the final determination, setting the Russia-wide rate of 184.56 percent as the all

others rate and assigning Joint Stock Company Severstal a weighted-average

dumping margin of 73.59 percent. See Final Results, 64 Fed. Reg. at 38,641; ADD

Order, 79 Fed. Reg. at 77,456.

      On October 23, 2017, Plaintiffs made an entry of HRC from Russia, and

subsequently requested administrative review of the ADD Order. See [HRC] from

[Russia], 84 Fed. Reg. 4,776 (Dep’t Commerce Feb. 19, 2019) (prelim. results of [ADD]

admin. review; 2016–2017), and accompanying Decision Memo. for the Prelim.




5 PNTR is a legal designation, indicating that the United States has extended “most-

favored nation” to a trading partner. See Internal Revenue Service Restructuring
and Reform Act of 1998, Pub. L. No. 105-206, 112 Stat. 685 (replacing the term “most-
favored nation” with PNTR).
Court No. 19-00194                                                               Page 8

Results of the [ADD] Admin. Review of [HRC] from [Russia], A-821-809 (Feb. 11,

2019), available at https://enforcement.trade.gov/frn/summary/russia/2019-02586-

1.pdf (last visited Apr. 28, 2020) (“Admin. Rev. Prelim. Decision Memo.”).6 Commerce

preliminarily determined that Plaintiffs did not make a bona fide sale. See Admin.

Rev. Prelim. Decision Memo. at 7–8.        In its final determination, Commerce

maintained its finding that Plaintiffs did not make a bona fide sale, rescinded the

administrative review, and continued to assign an all others rate of 184.56 percent.

See [HRC] from [Russia], 84 Fed. Reg. 38,948, 38,949 (Dep’t Commerce Aug. 8, 2019)

(final results and rescission of [ADD] admin. review) (“Final Results in 16–17 Admin.

Review”), and accompanying Issues & Decision Memo. for the [Final Results in 16–

17   Admin.   Review]   at   17–18,   A-821-809,   (Aug.   2,   2019),   available   at

https://enforcement.trade.gov/frn/summary/russia/2019-17006-1.pdf        (last   visited

Apr. 28, 2020) (“Final Decision Memo. in 16–17 Admin. Review”).            NLMK and

NOVEX commenced a separate action, also pending before this court, challenging

Commerce’s Final Results in 16–17 Admin. Review. See generally Novolipetsk Steel

Public Joint Stock Company v. United States, Ct. No. 19-00172.

                             STANDARD OF REVIEW

      The party seeking the Court’s jurisdiction has the burden of establishing that

jurisdiction exists. See Norsk Hydro Can., Inc. v. United States, 
472 F.3d 1347
, 1355



6 Specifically, NLMK had made a sale to NOVEX, the importer of record. See Pls.’

Resp. Def.-Intervenors’ Br. at 7; see also Final Decision Memo. in 16–17 Admin.
Review at 14.
Court No. 19-00194                                                            Page 9

(Fed. Cir. 2006); see also Kokkonen v. Guardian Life Ins. Co. of Am., 
511 U.S. 375
,

377 (1994). When deciding a motion to dismiss for lack of subject-matter jurisdiction,

the Court must first determine whether the motion seeking dismissal “challenges the

sufficiency of the pleadings or controverts the factual allegations made in the

pleadings.” See H & H Wholesale Servs., Inc. v. United States, 
30 CIT 689
, 691, 
437

F. Supp. 2d 1335
, 1339 (2006) (citation omitted). If the motion controverts the basis

for jurisdiction pled by the non-moving party, then “the allegations in the complaint

are not controlling,” and the court assumes that all undisputed facts alleged in the

complaint are true. Cedars-Sinai Med. Ctr. v. Watkins, 
11 F.3d 1573
, 1583–84 (Fed.

Cir. 1993).

                                   DISCUSSION

      Defendant and Defendant-Intervenors contend that the court lacks subject

matter jurisdiction over Plaintiffs’ claims under 28 U.S.C. § 1581(i), which requires

dismissal of the complaint. See Def.’s Br. at 8–13; Def.-Intervenors’ Br. at 7–16.

According to both, Plaintiffs challenge an ADD order embodying a final determination

that would have been reviewable under 28 U.S.C. § 1581(c) had Plaintiffs brought

timely action; now, however, administrative review is the proper means to challenge

the all others rate. See Def.’s Br. at 10; Def.-Intervenors’ Br. at 10–13.   Plaintiffs

counter that they do not seek judicial review of an agency determination that would

establish jurisdiction under subsection 1581(c); rather, they challenge Commerce’s

failure to determine an all others rate, which is reviewable under subsection 1581(i).
Court No. 19-00194                                                              Page 10

See Pls.’ Resp. Def.’s Br. at 11; Pls.’ Resp. Def.-Intervenors’ Br. at 5–7.7 Further,

Plaintiffs argue that even if they could pursue administrative review as another

remedial avenue under subsection 1581(c), the remedy would be manifestly

inadequate and, therefore, would support the exercise of residual jurisdiction over

the present action. See Pls.’ Resp. Def.’s Br. at 10, 17; Pls.’ Resp. Def.-Intervenors’

Br. at 7–12. For the reasons that follow, the court lacks subject matter jurisdiction

over Plaintiffs’ claims.

      Depending on the designation of a country as an NME or ME, Commerce

applies different methodologies to calculate normal value in an antidumping

investigation, which affects the calculation of dumping margins. Normal value refers

to “the price at which the foreign like product is first sold . . . for consumption in the

exporting country[.]” 19 U.S.C. § 1677b(a)(1)(B)(i). A dumping margin is “the amount

by which normal value exceeds the export price or constructed export price of the

subject merchandise.”
      Id. at § 
1677(35)(A).     For an ME country, Commerce

determines normal value on the basis of sales or constructed normal value. See 19

U.S.C. § 1677b(a); see also 19 C.F.R. § 351.403–351.407. By contrast, if the exporting

country is designated as an NME, “sales of merchandise in [that NME] country do



7 In response to Defendant’s factual allegations concerning the history of the

investigation of HRC from Russia, Plaintiffs intimate that “Commerce’s AD order,
which ended the investigation segment, is unlawful” because domestic interested
parties did not meet the burden of persuasion that the Suspension Agreement should
be terminated. See Pls.’ Resp. Def.’s Br. at 7–8. However, because Plaintiffs “had not
intended to challenge Commerce’s improper termination of the suspension
agreement,” the court does not address that issue.
 Id. at 7.
Court No. 19-00194                                                            Page 11

not reflect the fair value of merchandise.” 19 U.S.C. § 1677(18)(A). Therefore,

Commerce determines normal value based on an NME producer’s factors of

production, used to produce the subject merchandise, in an ME country or countries.

See
 

1677b(c); see also 19 C.F.R. § 351.408. Commerce assumes that all

producers are part of the government-entity and, in its preliminary and final

determinations, calculates one country-wide margin, unless an investigated

respondent demonstrates it qualifies for a separate rate.              See 19 C.F.R.

§ 351.408.8

      Irrespective of whether Commerce applies the NME or ME methodology,

Commerce issues preliminary and final determinations, where it 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
 

1677e.      Following a final



8 In 1999, when Commerce issued the Preliminary Results and Final Results,

Commerce’s practice was to assign separate rates to NME investigated respondents
that completed questionnaire responses and established their eligibility for a
separate rate by demonstrating an absence of government control in law and in fact.
See Prelim. Results, 64 Fed. Reg. at 9,315–16.
Court No. 19-00194                                                             Page 12

affirmative determination of sales at LTFV, and a final affirmative determination of

injury by the Commission, Commerce issues an ADD order, which marks the end of

the investigative phase of the proceeding.       See
 

1673e(a)–(b); 19 C.F.R.

§ 351.211. Commerce imposes antidumping duties “in an amount equal to the amount

by which the normal value exceeds the export price (or the constructed export price)

for the merchandise.” 19 U.S.C. § 1673; see also
 

1673e(a).

      Section 1581 enumerates the Court’s jurisdictional bases. 28 U.S.C. § 1581.

Relevant here, subsection (c) grants the Court “exclusive jurisdiction of any civil

action commenced under section 516A or 517 of the Tariff Act of 1930,”
 

1581(c),

which pertain to determinations in countervailing duty and ADD proceedings and

claims of evasion of countervailing duty and ADD orders, respectively. 19 U.S.C.

§§ 1516a, 1517. Subsection (i) is a “residual” grant of jurisdiction for review of, inter

alia, the “administration and enforcement” of claims that can be challenged under 28

U.S.C. § 1581(c), see 28 U.S.C. § 1581(i)(4), and claims when the remedy under

another subsection of 1581 would be manifestly inadequate. See Fujitsu Gen. Am.,

Inc. v. United States, 
283 F.3d 1364
, 1371 (Fed. Cir. 2002).

      Here, Plaintiffs’ request for a redetermined all others rate lies in a challenge

to the ADD Order, which would support jurisdiction under 1581(c). See Compl. at ¶

26, Prayer for Judgment and Relief.9 Commerce initiated its investigation of HRC




 Although Plaintiffs allege that Commerce’s failure to determine an all others rate

                                                                   (footnote continued)
Court No. 19-00194                                                              Page 13

imports from Russia, designated at that time as an NME country, and, in its final

determination, calculated a Russia-wide rate as well as a weighted-average rate. See

Final Results, 64 Fed. Reg. at 38,629, 38,641. When Commerce issued its ADD Order,

following Russia’s designation as an ME country, it stated that it was “instructing

CBP to require a cash deposit for each entry equal to the AD weighted-average

margin rates found in the Department’s Final Determination” and that the “all others

rate applies to all producers and exporters of subject merchandise not specifically


constitutes defective administration of antidumping laws, see Compl. ¶¶ 2, 26–28,
Commerce made a final determination and published the ADD Order, consistent with
its statutory obligations. In the final determination, Commerce applied its NME
methodology to determine the amount by which normal value exceeds export price,
resulting in the calculation of Russia-wide and weighted-average dumping margins.
See generally Final Results. When Commerce issued the ADD Order, subsequent to
the designation of Russia as an ME country, it imposed “an antidumping duty equal
to the amount by which the normal value of the merchandise exceeds the export price
(or the constructed export price) of the merchandise[.]” 19 U.S.C. § 1673e(a). More
specifically, Commerce imposed an ADD in the amount equal to the Russia-wide rate
it had found in the final determination.
       Further, Plaintiffs’ assertion that “the absence of an all others rate
determination is not susceptible to challenge under 19 U.S.C. § 1516a” is mistaken.
Pls.’ Resp. Def.-Intervenors’ Br. at 7. Plaintiffs equate Commerce’s failure to include
“discussion or information . . . in the AD Order with respect to the all others rate”
with a failure to make a determination within the meaning of 19 U.S.C. § 1677f(i).

Id. at 5–6. 
Section 1677f(i) sets out the disclosure requirements for, inter alia,
preliminary and final determinations, not ADD orders. See 19 U.S.C. 1677f(i)(1). An
alleged deficiency in a determination does not mean a determination was not
rendered. Here, Plaintiffs do not suggest that Commerce failed to publish a final
determination—and indeed acknowledge that Commerce issued the Final Results—
but, instead, appear to challenge the ADD Order’s embodiment of the final
determination. More specifically, Plaintiffs challenge the adoption of a country-wide
rate as an all others rate without explanation in the ADD Order. See Pls.’ Resp. Def.-
Intervenors’ Br. at 5–6. The ADD Order would be susceptible to judicial review under
19 U.S.C. § 1516a. See 19 U.S.C. § 1516a(a)(2)(A)(i)(II), (a)(2)(B)(i); see also 28 U.S.C.
§ 1581(c).
Court No. 19-00194                                                               Page 14

listed.” ADD Order, 79 Fed. Reg. at 77,456. Commerce made no further reference to

the all others rate.       See generally
 id.    Commerce’s conclusory 
pronouncement

concerning the all others rate in the ADD Order does not affect the jurisdictional

question before the court. See Compl. at ¶¶ 26–28.10 Rather, to the extent that there

is a mismatch and lack of explanation between the final determination, where

Commerce determined a Russia-wide rate, and the ADD Order, where Commerce set

the all others rate, Plaintiffs would have been able to challenge the all others rate in

the ADD Order—which embodies the final determination—and to obtain a

redetermined cash deposit rate under subsection 1581(c).               See 19 U.S.C. §

1516a(a)(2)(A)(i)(II), (a)(2)(B)(i); 28 U.S.C. § 1581(c); see also U.S. Steel Corp. v.

United States, 42 CIT __, __, 
319 F. Supp. 3d 1295
, 1300–01 (2018).

         However, jurisdiction under subsection 1581(c) is no longer available. Section

1516a(a)(2)(B)(i) details what determinations may be challenged when. See 19 U.S.C.

§ 1516a(a)(2)(B)(i); see also 28 U.S.C. § 2636.11 A party may challenge an ADD order



10 In support of Plaintiffs’ view that Commerce failed to render a determination

susceptible to challenge, Plaintiffs contend that a “failure to act does not constitute a
final agency action subject to review.” Pls.’ Resp. Def.’s Br. at 11. That argument
does not find support in the Administrative Procedure Act, which lists a failure to act
as a type of agency action susceptible to judicial review. See 5 U.S.C. § 551(13)
(defining an “agency action” as, inter alia, a “failure to act”); see also
 

§ 701,
705. In addition, Plaintiffs’ theory that a failure to act is not challengeable under the
APA contradicts Plaintiffs’ claim for relief under the APA, to compel Commerce to set
an all others rate in the ADD Order. See Compl.; see also Pls.’ Resp. Def.’s Br. at 11.
11   Plaintiffs contend that its action is timely, because they were not injured until they

                                                                      (footnote continued)
Court No. 19-00194                                                              Page 15

based upon a final affirmative determination by filing in this Court both a summons,

within 30 days of the order’s publication in the Federal Register, and, within 30 days

later, a complaint. See 19 U.S.C. § 1516a(a)(2)(A)(i)(II), (a)(2)(B)(i). Here, Commerce

issued its Final Results and, following the termination of the Suspension Agreement,

published the ADD Order. Neither Plaintiffs nor any participant to the proceeding

commenced an action within 30 days of the publication of the ADD Order. Given that

the ADD Order would have been susceptible to challenge, jurisdiction would have laid

under subsection (c), foreclosing jurisdiction under subsection (i).12


became subject to posting cash deposits on October 23, 2017 and sought
administrative review. See Pls.’ Resp. Def.’s Br. at 8, 12–13. In making this
argument, Plaintiffs focus on the timeliness of an action under 28 U.S.C. § 1581(i).
However, for the reasons discussed above, the court does not have subject matter
jurisdiction under subsection (i).
12Defendant and Defendant-Intervenors argue that Plaintiffs could obtain a new cash
deposit rate by making sales of HRC and seeking administrative review of the ADD
Order. Def.’s Br. at 10; Def.-Intervenors’ Br. at 11–12; see also 19 U.S.C. § 1675(a).
Plaintiffs disagree. They explain that in the 2017–2018 review Commerce again
assigned an all others rate of 184.56 percent and, in January 2020, issued liquidation
instructions on NLMK merchandise exported by any party. See Pls.’ Resp. Def.’s Br.
at 9. Plaintiffs allege that even if they were to win the appeal in the 2016–2017
administrative review, that 2017–2018 review would supersede and re-impose the
184.56 percent rate.
 Id. at 9–10. 
Plaintiffs characterize the application of a
previously established margin as a cash deposit rate in a subsequent administrative
review as “an act of sabotage” and claim that the governments’ conduct is “likely to
recur,” imposing a continuing harm. See
 id. at 10, 
12–17. Also, given that Commerce
“preordained” the outcome of the 2016–2017 administrative review, Plaintiffs argue
that they have no other remedy under section 1581 to challenge the all others rate
than subsection (i). See Pls.’ Resp. Def.-Intervenors’ Br. at 8. Setting aside Plaintiffs’
characterizations, nothing they assert establishes jurisdiction in this case, because
they complain of the appropriateness of the all others rate imposed by the ADD order.
Therefore, the court does not reach either Defendant’s and Defendant-Intervenors’
positions regarding the availability of a challenge to an administrative review or
Plaintiffs’ response.
Court No. 19-00194                                                          Page 16

                                  CONCLUSION

      For the foregoing reasons, it is

      ORDERED that Defendant’s and Defendant-Intervenors’ motions to dismiss

are granted and Plaintiffs’ complaint is dismissed. Judgment will enter accordingly.




                                                   /s/ Claire R. Kelly
                                                   Claire R. Kelly, Judge


Dated:      May 1, 2020
            New York, New York