Dillinger France S.A. v. United StatesPublic version: 08/15/2023.

Slip Op. 23-

UNITED STATES COURT OF INTERNATIONAL TRADE

DILLINGER FRANCE S.A.,
Plaintiff,
v.
UNITED STATES, Before: Judge Gary S. Katzmann
Court No. 17-00159
Defendant,
and PUBLIC VERSION

NUCOR CORPORATION and SSAB
ENTERPRISES LLC,
Defendant-Intervenors.

OPINION

[The court sustains Commerce’s Third Remand Results.]

Dated: August 15, 2023

Marc E. Montalbine, DeKieffer & Horgan PLCC, of Washington, D.C., argued for Plaintiff
Dillinger France S.A. With him on the briefs were Gregory S. Menegaz, Alexandra H. Salzman,
Merisa A. Horgan, and Alexandra H. Salzman.

Kara M. Westercamp, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, D.C., argued 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 on the brief was Ayat Mujais,
Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department
of Commerce, of Washington, D.C.

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

Roger B. Schagrin, Schagrin Associates, of Washington D.C., for Defendant-Intervenor SSAB
Enterprises LLC.

Katzmann, Judge: The court returns to the less-than-fair-value (“LTFV”) investigation of

certain carbon and alloy steel cut-to-length plate from France to consider the U.S. Department of
Court No. 17-00159 Page 2
PUBLIC VERSION

Commerce (“Commerce”)’s latest remand results. See Certain Carbon and Alloy Steel Cut-to-

Length Plate from Austria, Belgium, France, the Federal Republic of Germany, Italy, Japan, the

Republic of Korea, and Taiwan: Amended Final Affirmative Antidumping Determinations for

France, the Federal Republic of Germany, the Republic of Korea and Taiwan, 82 Fed. Reg. 24096

(Dep’t Com. May 25, 2017), P.R. 456 (“Am. Final Determination”); see also Final Results of

Redetermination Pursuant to Court Remand (Dep’t Com. Nov. 15, 2022), Nov. 16, 2022, ECF No.

120-1 (“Third Remand Results”). The sole issue is whether -- following the Federal Circuit’s

ruling in Dillinger France S.A. v. United States, 981 F.3d 1318 (Fed. Cir. 2020) (“Dillinger III”) -

- Commerce permissibly relied on Plaintiff Dillinger France S.A. (“Dillinger”)’s normal books

and records to supply missing cost information in calculating antidumping duties.

For the reasons outlined below, the court sustains Commerce’s Third Remand Results.

BACKGROUND

While the court presumes familiarity with Dillinger France S.A. v. United States, 42 CIT

__, 350 F. Supp. 3d 1349 (2018) (“Dillinger I”), Dillinger France S.A. v. United States, 43 CIT

__, 393 F. Supp. 3d 1225 (2019) (“Dillinger II”), Dillinger III, 981 F.3d 1318, and Dillinger France

S.A. v. United States, 46 CIT __, 589 F. Supp. 3d 1252 (2022) (“Dillinger IV”), for ease of

reference, the court sets out the relevant legal, factual, and procedural background below.

I. Legal Background

A. Normal Value

When a foreign firm sells a product for less than fair value in the United States, such a

product is deemed to be “dumped.” See Saha Thai Steel Pipe (Pub.) Co. v. United States, 635

F.3d 1335, 1338 (Fed. Cir. 2011). Commerce identifies “dumping” by assessing whether an

investigated product (“subject merchandise”)’s export price -- as measured by U.S. sales price --
Court No. 17-00159 Page 3
PUBLIC VERSION

is lower than the product’s normal value, which is typically measured by the price of the product

in the home market. See Maverick Tube Corp. v. Toscelik Profil, 861 F.3d 1269, 1271 (Fed. Cir.

2017); see also 19 U.S.C. § 1677b(a)(1)(B)(i). Where Commerce identifies dumping, 1 the agency

imposes antidumping duties on the foreign merchandise proportional to the amount by which

normal value exceeds the export price. See 19 U.S.C. § 1673; id. § 1677(35)(A).

To complete these assessments and calculations, Commerce must establish the normal

value of the investigated foreign merchandise, which again, generally requires establishing the

home market sales price. In determining home market sales price, “Commerce may disregard sales

made at less than the manufacturer’s cost of production.” Saha Thai, 635 F.3d at 1338 (citing 19

U.S.C. § 1677b(b)(1)). “Cost of production” is defined as

[A]n amount equal to the sum of—

(A) the cost of materials and of fabrication or other processing of any kind
employed in producing the foreign like product, during a period which
would ordinarily permit the production of that foreign like product in the
ordinary course of business;

(B) an amount for selling, general, and administrative expenses based on
actual data pertaining to production and sales of the foreign like product by
the exporter in question; and

(C) the cost of all containers and coverings of whatever nature, and all other
expenses incidental to placing the foreign like product in condition packed
ready for shipment.

19 U.S.C. § 1677b(b)(3).

“If no sales in the exporting country remain after disregarding sales below [cost of

production], then Commerce will alternatively base [normal value] on the constructed value . . . of

1
And where the United States International Trade Commission makes the additional requisite
finding -- not at issue in the case at bar -- that the sale of such merchandise below fair value is
materially injuring, threatening, or impeding the establishment of an industry in the United States.
See Diamond Sawblades Mfrs. Coal. v. United States, 866 F.3d 1304, 1306 (Fed. Cir. 2017).
Court No. 17-00159 Page 4
PUBLIC VERSION

the merchandise.” Saha Thai, 635 F.3d at 1338. The Federal Circuit has explained that cost of

production and constructed value “are closely related.” Id. Constructed value “includes the same

or similar elements as [cost of production]” -- namely, “(1) the cost of manufacture; (2) ‘selling,

general, and administrative expenses;’ and (3) packaging expenses” -- “but with the additional

component of profit.” Id. (quoting 19 U.S.C. § 1677b(b)(3), (e)).

“The statute further explains that such ‘[c]osts shall normally be calculated based on the

records of the exporter or producer of the merchandise, if such records are kept in accordance with

the generally accepted accounting principles [GAAP] of the exporting country . . . and reasonably

reflect the costs associated with the production and sale of the merchandise.’” Id. at 1341–42

(alterations in original) (quoting 19 U.S.C. § 1677b(f)(1)(A)). The Federal Circuit has interpreted

“the legislative history of section 1677b(f) . . . [and] its plain meaning[] [to] indicate[] Congress

intended that Commerce rely on a producer’s or exporter’s books and records if they . . . reasonably

reflect the costs of production.” Dillinger III, 981 F.3d at 1323.

B. Facts Otherwise Available & Adverse Inferences

If an interested party “withholds information” or otherwise does not comply with

Commerce’s requests, see 19 U.S.C. § 1677e(a)(2), or if “necessary information is not available

on the record,” id. § 1677e(a)(1), Commerce “shall . . . use facts otherwise available” to fill

informational gaps and render determinations, id. § 1677e(a). The Federal Circuit has interpreted

this provision to mean that “[t]he mere failure of a respondent to furnish requested information --

for any reason -- requires Commerce to resort to other sources of information to complete the

factual record on which it makes its determination.” Nippon Steel Corp. v. United States, 337 F.3d

1373, 1381 (Fed. Cir. 2003) (“The focus of [1677e(a)(1)] is respondent’s failure to provide

information. The reason for the failure is of no moment.” (emphasis in original)).
Court No. 17-00159 Page 5
PUBLIC VERSION

Moreover, where Commerce makes a “valid decision to use facts otherwise available,”

Shandong Huarong Mach. Co. v. United States, 30 CIT 1269, 1301, 435 F. Supp. 2d 1261, 1289

(2006), Commerce may then make the additional decision to “use an inference that is adverse to

the interests of [a respondent] in selecting from among the facts otherwise available” provided that

Commerce supportably finds the respondent “has failed to cooperate by not acting to the best of

its ability,” Nippon Steel, 337 F.3d at 1380–81 (alteration in original) (quoting 19 U.S.C.

§ 1677e(b)(1)).

II. Factual Background

On May 25, 2017, Commerce imposed an antidumping margin of 6.15 percent on

Dillinger’s cut-to-length plate products. See Certain Carbon and Alloy Steel Cut-to-Length Plate

from France: Final Determination of Sales at Less than Fair Value, 82 Fed. Reg. 16363 (Dep’t

Com. Apr. 4, 2017), P.R. 451; Mem. from J. Maeder to G. Taverman, re: Issues and Decision

Memorandum for the Final Affirmative Antidumping Duty Determination and Determination of

Sales at Less Than Fair Value (Dep’t Com. Mar. 29, 2017), P.R. 445 (“IDM”); see also Am. Final

Determination, 82 Fed. Reg. at 24098. Dillinger sells plate designated as prime and non-prime,

with non-prime plate comprising plates that are rejected for failing to meet the standards for prime

plate. See Dillinger III, 981 F.3d at 1321. Such non-prime products are an inevitable consequence

of the production process of prime products. Because non-prime plate are sold without

certification as to grade, type, or chemistry and cannot be used in applications that require such

certifications, non-prime plate attract a lower market value than prime plate. See IDM at 58–60.

In its normal books and records, Dillinger values non-prime products at their likely selling

price -- which comes out to [[ ]] Euros/ton. See IDM at 59; see also Mem. from R.B. Greger

to N.M. Harper, re: Cost of Production and Constructed Value Calculation Adjustments for the
Court No. 17-00159 Page 6
PUBLIC VERSION

Final Determination (Dep’t Com. Mar. 29, 2017), P.R. 447, C.R. 701; Mem. from R.B. Greger to

N.M. Halper, re: Cost of Production and Constructed Value Calculation Adjustments for the

Preliminary Determination at attach. 2 (Dep’t Com. Nov. 4, 2016), P.R. 366, C.R. 405. However,

when responding to Commerce’s questionnaires in the LTFV investigation, Dillinger reported its

costs of production for non-prime plate as the average cost of production for all prime plate sold

during the period of investigation (“POI”) of [[ ]] Euros/ton -- a figure higher than the likely

selling price. See IDM at 59; see also Dillinger Second Supplemental Section D Response Part II

at app. SD-24 (Sept. 28, 2016), P.R. 289, C.R. 338 & 342.

For its part, when calculating normal value, Commerce adjusted the reported costs for non-

prime products back to the value recorded in Dillinger’s normal books and records -- i.e., the lower

estimated sales price of [[ ]] Euros/ton -- and then allocated the difference between the

reported and adjusted figure for non-prime products to the cost of production for prime products.

IDM at 59.

III. Procedural Background

A. The Federal Circuit’s Remand

Dillinger challenged several aspects of Commerce’s determination before this court in

Dillinger I, including the agency’s reliance on Dillinger’s normal books and records to reallocate

production costs between prime and non-prime plate in calculating normal value. See 350 F. Supp.

3d at 1374–77. This court sustained Commerce’s cost adjustments. See id. However, the Federal

Circuit disagreed, ruling in Dillinger III that Commerce’s determination was erroneous because

Dillinger’s normal books and records reflect the estimated selling price of non-prime plate rather

than costs of production, and thus failed to satisfy the requirement of § 1677b(f) that an exporter’s

records “reasonably reflect the costs associated with the production and sale of the merchandise.”
Court No. 17-00159 Page 7
PUBLIC VERSION

See 981 F.3d at 1321–24 (discussing 19 U.S.C. § 1677b(f)(1)(A)). 2 Accordingly, the Federal

Circuit remanded to Commerce “to determine the actual costs of prime and non-prime products.”

Id. at 1324.

B. Reopening the Administrative Record

To comply with the directive of the Federal Circuit “to determine the actual costs of prime

and non-prime products,” id., on remand, Commerce reopened the administrative record and sent

Dillinger a supplemental questionnaire requesting information on the physical characteristics and

corresponding actual product-specific -- also known as CONNUM 3-specific -- production costs of

its non-prime plates. See Letter from T.A. Slaughter to Dillinger, re: Remand Redetermination at

3–5 (Dep’t Com. Mar. 17, 2021), P.R.R. 9.4 Dillinger responded to the agency that it was unable

to identify all of the physical characteristics of its non-prime products; as such, Dillinger

2
As the Federal Circuit noted in Dillinger III:

It is unclear . . . whether Commerce’s calculation of normal value involved
determining constructed value (determining the sum of “the cost of materials and
fabrication or other processing of any kind employed in producing the
merchandise” and other factors under 19 U.S.C. § 1677b(e)), or involved
determining cost of production so as to exclude home market sales made below cost
of production under § 1677b(b)(3). In either event, § 1677b(f) applies . . . .

981 F.3d at 1321 n.1. Recall that § 1677b(f)(1)(A) instructs:
Costs shall normally be calculated based on the records of the exporter or producer
of the merchandise, if such records are kept in accordance with the generally
accepted accounting principles of the exporting country (or the producing country,
where appropriate) and reasonably reflect the costs associated with the production
and sale of the merchandise.

19 U.S.C. § 1677b(f)(1)(A).
3
In LTFV investigations, products with identical physical characteristics are categorized by the
same control number, or “CONNUM.”
4
P.R.R. refers to the public Remand Redetermination record; C.R.R. refers to the confidential
Remand Redetermination record.
Court No. 17-00159 Page 8
PUBLIC VERSION

resubmitted production costs for its non-prime products derived from the average cost of producing

all prime plate sold during the POI, namely the [[ ]] Euros/ton figure. See Letter from

Dillinger to G.M. Raimondo, re: Supplemental Questionnaire Response at 7–13 (June 23, 2021),

P.R.R. 16, C.R.R. 5.

Commerce determined that Dillinger’s response was insufficient to calculate actual costs

of production -- as required by the Federal Circuit in Dillinger III -- and that it was, thus, necessary

to invoke facts otherwise available under § 1677e(a)(1) 5 in rendering the remand results. See Final

Results of Redetermination Pursuant to Court Remand at 6–7 (Dep’t Com. Aug. 24, 2021), Aug.

25, 2021, ECF No. 85-1 (“Second Remand Results”). Because Commerce determined that “not

knowing the actual cost of producing the non-prime merchandise directly impacts the amount of

costs assigned to the production of the prime products,” the agency found that cost information for

both non-prime and prime products was missing. Id. at 6. Commerce utilized Dillinger’s normal

books and records -- the data source to which the Federal Circuit had previously objected -- as

facts otherwise available to fill the informational gap. Id. As a result, Commerce continued to

assess a weighted-average dumping margin of 6.15 percent on Dillinger’s subject merchandise in

the Second Remand Results. Id. at 22.

5
Recall that 19 U.S.C. § 1677e(a)(1) instructs in relevant part:

(a) In general

If . . . necessary information is not available on the record . . . , the administering
authority and the Commission shall, subject to section [1677m](d) of this title, use
the facts otherwise available in reaching the applicable determination under this
[sub]title.

19 U.S.C. § 1677e(a)(1).
Court No. 17-00159 Page 9
PUBLIC VERSION

C. This Court’s Further Remand

Upon review of the Second Remand Results in Dillinger IV, this court first sustained

Commerce’s general invocation of facts otherwise available to supply the costs of production for

both non-prime and prime products, but remanded for further explanation Commerce’s particular

selection of Dillinger’s normal books and records as the facts otherwise available.

1. General Reliance on Facts Otherwise Available

Concerning the former ruling, this court held that where Dillinger knows the total costs it

incurred over the POI to produce all of its plate products, but does not know the actual division of

these total costs among prime and non-prime products, substantial evidence justified Commerce’s

conclusion that it was necessary to rely on facts otherwise available to supply the costs of

production for both non-prime and prime plate. 589 F. Supp. 3d at 1260. The court noted that, as

Plaintiff itself acknowledges, Dillinger tracks only actual total costs of producing two different

types of plate -- line-pipe plate and regular plate -- which when added together equal the actual

total costs of producing all plate over the period. Id. at 1257. However, prime and non-prime

plate are produced within each of the line-pipe and regular groups, and Dillinger does not track

the costs of prime versus non-prime products within these subgroups. Id.

Dillinger, nevertheless, maintained before this court that there was no missing information

with respect to the costs of prime plate, such that any adjustments Commerce made on the basis

of facts otherwise available must be limited to non-prime plate and cannot alter the properly

reported costs of prime plate. Id. at 1256–57. But as Plaintiff itself explained, in its submissions

to Commerce, Dillinger allocated costs between prime and non-prime products based on a

“percentage yield” approach. See id. at 1258 n.6. This means that where [[ ]] percent of the

total quantity of regular plate produced during the POI was non-prime, Dillinger allocated
Court No. 17-00159 Page 10
PUBLIC VERSION

[[ ]] percent of the actual total costs of producing all regular plate to non-prime plate (and

the remainder to prime); and where [[ ]] percent of the total quantity of line-pipe plate

produced during the POI was non-prime, Dillinger allocated [[ ]] percent of the actual total

costs of producing all line-pipe plate to non-prime plate (and the remainder to prime). Id. at 1257.

At oral argument on Commerce’s Second Remand Results, this court asked the parties to

consider the below Excel spreadsheet -- in which the court assumed for hypothetical purposes that

60 percent of the plate Dillinger produced during the POI was prime and 40 percent was non-prime

-- to inform the court’s understanding that costs calculated for prime and non-prime plate under

Plaintiff’s “percentage yield” approach could potentially differ from those calculated under an

“actual cost” approach:

Plate No. Prime vs. Non- Cost
Prime
1 Prime $2.00
2 Prime $4.00
3 Prime $6.00
4 Prime $8.00
5 Prime $10.00
6 Prime $12.00
7 Non-Prime $2.00
8 Non-Prime $4.00
9 Non-Prime $6.00
10 Non-Prime $8.00

Total Cost $62.00

Non-Prime Prime Costs Total Cost
Costs
Percentage Yield Approach
(Assigning 60% of total costs ($62)
to prime plate and assigning 40% of $24.80 $37.20 $62.00
total costs ($62) to non-prime plate)
Actual Cost Approach
(Adding together actual costs of
producing non-prime plate and $20.00 $42.00 $62.00
adding together actual costs of
producing prime plate)
Court No. 17-00159 Page 11
PUBLIC VERSION

Id. at 1258 n.6. While it is undisputed that Dillinger does not track costs on the plate-specific basis

necessary to complete the “actual cost” approach, 6 the above hypothetical illuminates that not

knowing the actual cost of producing the non-prime merchandise directly impacts the amount of

costs allocated to the production of the prime products. Relying on the Federal Circuit’s instruction

that “[t]he focus of [§ 1677e(a)(1)] is [a] respondent’s failure to provide information,” such that

“[t]he mere failure of a respondent to furnish requested information -- for any reason -- requires

Commerce to resort to other sources of information to complete the factual record on which it

makes its determination,” Nippon Steel, 337 F.3d at 1381 (emphasis in original), this court

sustained Commerce’s general invocation of facts otherwise available to supply the costs of

production for both non-prime and prime products. See 589 F. Supp. 3d at 1257. 7,8

6
Though, as this court noted, parties disagree as to whether Dillinger in fact could have supplied
such plate-specific cost information. See, e.g., id. at 1260 n.10 (“[I]f Dillinger had wanted to
present evidence of the specific non-prime products produced, it could have relied on production
reports or finished goods inventory excerpts to show which production runs resulted in the
production of non-prime plates. Dillinger chose not to do so.” (quoting Second Remand Results
at 19)); see also Third Remand Results at 13–14.
7
While acknowledging “the doctrine of law of the case generally bars retrial of issues that were
previously resolved,” Pl.’s Resp. to Ct.’s Apr. 11, 2023 Qs. for Oral Arg at 6, Apr. 26, 2023, ECF
No. 143 (“Pl.’s Oral Arg. Subm.”) (citing Intergraph Corp. v. Intel Corp., 253 F.3d 695, 697 (Fed.
Cir. 2001)), Dillinger continues to argue “[t]he informational gap to be filled in this current
situation is [only] the actual costs of production of non-prime products,” id. As support, Dillinger
maintains that the court’s above hypothetical does not “accurately portray how . . . actual costs
were allocated,” id., and urges the court to rely on the following hypothetical (which uses
generalized, non-proprietary figures from Dillinger’s questionnaire submissions):

Step 1: Actual Production Costs
Product Group Total Actual COP
Regular Plate (all choices) € 205,000,000 a
/LQHဨSLSH3ODWH DOOFKRLFHV € 90,000,000 b
Total € 295,000,000 c
Court No. 17-00159 Page 12
PUBLIC VERSION

Step 2: Standard Production Costs & Variance
Product Group Total Standard COP
Regular Plate (all choices) € 210,000,000 d
/LQHဨSLSH3ODWH (all choices) € 92,000,000 e
Total € 302,000,000 f

Product Group Variance
Regular Plate (all choices) 0.9762 g = a/d
/LQHဨSLSH3ODWH (all choices) 0.9783 h = b/e
Total 0.9768 i = c/f

Step 3: Allocate Actual Costs to prime & QRQဨSULPH plate
5HJXODU3ODWH QRQဨSULPH 2.30% j
yield rate)
/LQHဨSLSH3ODWH QRQဨSULPH 2.60% k
yield rate)

Product Group Prime 1RQဨSULPH
Regular Plate € 200,285,000 € 4,715,000 axj
/LQHဨSLSH Plate € 87,660,000 € 2,340,000 bxk
Total € 287,945,000 € 7,055,000 € 295,000,000

Step 4: Allocate Actual Costs to individual products (CONNUMs)
Prime Plate A A x variance (i)
CONNUM standard costs/ton actual costs/ton
ဨဨဨဨဨဨဨဨဨဨဨ € 1,100.57 € 1,075.04
ဨဨဨဨဨဨဨဨဨဨဨ € 998.63 € 975.46
ဨဨဨဨဨဨဨဨဨဨဨ € 926.35 € 904.86
ဨဨဨဨဨဨဨဨဨဨဨ € 886.32 € 865.76
ဨဨဨဨဨဨဨဨဨဨဨ € 721.45 € 704.71
ဨဨဨဨဨဨဨဨဨဨဨ € 628.64 € 614.06
ဨဨဨဨဨဨဨဨဨဨဨ € 563.21 € 550.14
*** *** ***
ဨဨဨဨဨဨဨဨဨဨဨ € 500.23 € 488.62
Total actual costs allocated to prime plate € 287,945,000

Non-Prime Plate
CONNUM Standard costs/ton Actual costs/ton
ဨဨဨဨဨဨဨဨဨဨဨ € 542.69
ဨဨဨဨဨဨဨဨဨဨဨ € 542.69
ဨဨဨဨဨဨဨဨဨဨဨ € 542.69
ဨဨဨဨဨဨဨဨဨဨဨ € 542.69
ဨဨဨဨဨဨဨဨဨဨဨ € 542.69
Total actual costs allocated to QRQဨSULPH plate € 7,055,000

1RQဨSULPH plate actual costs € 7,055,000 m
1RQဨSULPH plate quantity 13,000 n
1RQဨSULPH plate actual cost/ton € 542.69 m/n
Court No. 17-00159 Page 13
PUBLIC VERSION

2. Particular Selection of Facts Otherwise Available

The court next considered Commerce’s use of the costs assigned in Dillinger’s normal

books and records as the agency’s particular selection of facts otherwise available to supply the

missing cost information for prime and non-prime products. As a threshold matter, this court held

that the Federal Circuit’s ruling in Dillinger III had “not strictly prohibit[ed] Commerce from

Id. at annex A. The problem for Dillinger is that Step 3 of its hypothetical still employs a
³SHUFHQWDJH\LHOG´DSSURDFKWRGHULYH³DFWXDO´WRWDOFRVWVRISULPHDQGQRQဨSULPHSODWH$QGIURP
there, Step 4 allocates those “actual” total costs of prime and non-prime plate -- as derived from
the “percentage yield” approach -- on a plate-specific basis. Thus, Dillinger’s alternative
hypothetical does not overcome the fundamental takeaway of the court’s simplified hypothetical,
which is that: (1) costs calculated for prime and non-prime plate using a “percentage yield”
approach potentially differ from those calculated using an “actual cost” approach; and (2) not
knowing the actual cost of producing the non-prime merchandise directly impacts the amount of
costs assigned to the production of the prime products.
It may be -- as Dillinger suggests -- that it is “impossible to track the actual costs of an
individual plate.” Id. at 1. Nevertheless, the Federal Circuit has been clear that “[t]he focus of [19
U.S.C. § 1677e(a)(1)] is [a] respondent’s failure to provide information. The reason for the failure
is of no moment.” Nippon Steel, 337 F.3d at 1381 (emphasis in original). Thus, in light of the
foregoing, no “most cogent of reasons” compel this court to reconsider its prior ruling upholding
Commerce’s general invocation of facts otherwise available to supply the costs of production for
both non-prime and prime products. Intergraph Corp., 253 F.3d at 697 (quoting Delong Equip.
Co. v. Washington Mills Electro Mins. Corp., 990 F.2d 1186, 1196 (11th Cir. 1993)).
8
Furthermore, in its briefing contesting the Third Remand Results, Dillinger argues that
Commerce “arbitrar[ily] . . . treat[ed] similar situations differently” when it determined that a
respondent in another LTFV investigation, NEXTEEL, “reported costs reflect[ing] the full actual
costs of producing its prime and non-prime products.” Pl.’s Cmts. in Opp. to Third Remand
Results at 12–14, Dec. 16, 2022, ECF No. 123 (“Pl.’s Br.”) (emphasis added) (discussing Husteel
Co. v. United States, 46 CIT __, 552 F. Supp. 3d 1405 (2022)). First, such an argument seeks
retrial of an issue already resolved -- namely, whether Commerce here permissibly determined that
it lacked “actual costs” such that reliance on facts otherwise available was appropriate. Second,
the court briefly notes that Dillinger has not even alleged that NEXTEEL derived the cost data that
it submitted to Commerce -- and that Commerce deemed reflective of “actual costs” -- via a
“percentage yield” approach, as Dillinger did. Where this court has already established that
Dillinger’s “percentage yield” approach gave rise to a cost-related informational gap, supra, and
where Dillinger has not shown that NEXTEEL likewise employed such a “percentage yield”
approach, here too, the court is not persuaded to reconsider its prior ruling sustaining Commerce’s
general invocation of facts otherwise available to supply the costs of production for both non-
prime and prime products.
Court No. 17-00159 Page 14
PUBLIC VERSION

relying on Dillinger’s normal books and records as facts otherwise available.” Id. at 1261. This

was so -- in this court’s estimation -- because at issue before the Federal Circuit in Dillinger III

was only Commerce’s reliance on Dillinger’s normal books and records in calculating normal

value under 19 U.S.C. § 1677b; accordingly, the Federal Circuit had no reason or occasion to

consider what sources Commerce could or could not rely on as facts otherwise available under 19

U.S.C. § 1677e once the agency concluded that it did not have the information it needed to

determine the actual costs of prime and non-prime products.

Nevertheless, this court determined that it could not sustain reliance on Dillinger’s normal

books and records as facts otherwise available where the agency’s proffered explanation consisted

solely of a rejection of Dillinger’s proposed dataset for a flaw that Commerce’s selected dataset

likewise exhibited. Dillinger IV, 589 F. Supp. 3d at 1262. Specifically, Commerce concluded that

“it was not appropriate to rely on the overall average cost of producing all prime products as a

surrogate for the actual cost of producing the specific non-prime products produced,” Second

Remand Results at 3–4 -- as advocated by Dillinger -- because doing so “assigns the same cost to

products with varying physical characteristics,” id. at 7. Yet, Commerce selected as facts

otherwise available “the non-prime cost information recorded in Dillinger’s normal books and

records (i.e., the estimated sales prices),” while acknowledging that such data “does not vary by

CONNUM and does not reflect cost differences attributable to the physical characteristics,” id. at

20. Finding a foundational violation of administrative law principles -- namely, that “agency

action is arbitrary,” and thereby contrary to law, “when the agency offers insufficient reasons for

treating similar situations differently” -- this court remanded to Commerce for an affirmative

explanation of its selected facts otherwise available to supply the missing cost information.

Dillinger IV, 589 F. Supp. 3d at 1262 (cleaned up) (quoting SKF USA Inc. v. United States, 263
Court No. 17-00159 Page 15
PUBLIC VERSION

F.3d 1369, 1382 (Fed. Cir. 2001)). Accordingly, this court did not reach or resolve whether the

Federal Circuit’s ruling in Dillinger III otherwise foreclosed use by Commerce of Dillinger’s

normal books and records as facts otherwise available.

D. Commerce’s Third Remand Results

Commerce issued the Third Remand Results -- the focus of this court’s instant review --

on November 16, 2022. In said results, Commerce continues to rely on Dillinger’s normal books

and records as facts otherwise available to supply the missing cost information for prime and non-

prime plate, but now provides a two-fold justification for such reliance:

Commerce first submits that

[r]elying on Dillinger’s normal books and records, as facts available, to value both
the prime and non-prime merchandise is the only reasonable approach because it
recognizes that, where Dillinger cannot produce 98 perfect plates without
producing two imperfect plates, the lost value of the two imperfect plates is actually
a cost of producing the 98 perfect ones and should be accounted for as such.

Third Remand Results at 6. Second, Commerce explains that Dillinger’s objections to reliance on

the normal books and records as facts otherwise available hinge on unsubstantiated assumptions;

namely that “the likely selling price [of non-prime plate] must be lower than the cost of producing

the product” and that Dillinger’s “costs of producing non-prime products cannot be lower than its

cost[s] of producing its prime products.” Third Remand Results at 13. Commerce maintains that

“[a]bsent the physical characteristics and actual [cost of production] information for the non-prime

products produced, which are solely in the possession of Dillinger, none of the above assumptions

are supported by record information.” Id. In light of the foregoing, Commerce continues in the

Third Remand Results to rely on Dillinger’s normal books and records as facts otherwise available

and to assign Dillinger a weighted-average dumping margin of 6.15 percent. Id. at 2–3.
Court No. 17-00159 Page 16
PUBLIC VERSION

On December 16, 2022, Dillinger filed with this court comments in opposition to

Commerce’s Third Remand Results, see Pl.’s Br., to which Defendant the United States (“the

Government”) and Defendant-Intervenor Nucor Corporation (“Nucor”) responded on January 17,

2023, see Def.’s Resp. to Cmts. in Opp. to Third Remand Results, Jan. 17, 2023, ECF No. 124

(“Def.’s Br.”); Def.-Inter.’s Resp. to Cmts. in Opp. to Third Remand Results, Jan. 17, 2023, ECF

No. 125 (“Def.-Inter.’s Br.”). The court ordered oral argument on the Third Remand Results, see

Order Scheduling Oral Arg., Apr. 25, 2023, ECF No. 139, and issued questions to the parties for

answers in writing, see Ct.’s Qs. for Oral Arg., Apr. 11, 2023, ECF No. 133; see also Pl.’s Oral

Arg. Subm.; Def.’s Resp. to Ct.’s Apr. 11, 2023 Qs., Apr. 26, 2023, ECF No. 141 (“Def.’s Oral

Arg. Subm.”); Def.-Inter.’s Resp. to Ct.’s Apr. 11, 2023 Qs., Apr. 26, 2022, ECF No. 145 (“Def.-

Inter.’s Oral Arg. Subm.”). Upon examination of the parties’ submissions, the court issued

supplemental questions for further written response. See Ct.’s Supp. Qs. for Oral Arg., May 1,

2023, ECF No. 146; see also Pl.’s Resp. to Ct.’s May 1, 2023 Suppl. Qs., May 8, 2023, ECF No.

150 (“Pl.’s Suppl. Qs. Resp.”); Def.’s Resp. to Ct.’s May 1, 2023 Suppl. Qs., May 8, 2023, ECF

No. 147 (“Def.’s Suppl. Qs. Resp.”); Def.-Inter.’s Resp. to Ct.’s May 1, 2023 Suppl. Qs., May 8,

2023, ECF No. 148 (“Def.- Inter.’s Suppl. Qs. Resp.”).

Oral argument was held on May 10, 2023. See ECF No. 151. Following oral argument,

the parties submitted post-oral argument briefing to the court. See Pl.’s Post-Arg. Subm., May 19,

2023, ECF No. 155 (“Pl.’s Suppl. Br.”); Def.’s Post-Arg. Subm., May 19, 2023, ECF No. 153;

Def.-Inter.’s Post-Arg. Subm., May 19, 2023, ECF No. 154. With these cumulative submissions

in hand, the case is now decision ready.
Court No. 17-00159 Page 17
PUBLIC VERSION

JURISDICTION AND STANDARD OF REVIEW
Dillinger brings this action under 19 U.S.C. § 1516a(a)(2)(A)(i)(I) and (a)(2)(B)(iii), and

the court has jurisdiction pursuant to 28 U.S.C. § 1581(c). The court “will uphold [Commerce’s]

redetermination pursuant to . . . remand unless it is ‘unsupported by substantial evidence on the

record, or otherwise not in accordance with law.’” Consolidated Bearings Co. v. United States, 28

CIT 106, 106, 346 F. Supp. 2d 1343, 1344 (2004), aff’d 412 F.3d 1266, 1267 (Fed. Cir. 2005).

A determination by Commerce is “supported by substantial evidence” if, after accounting

for detracting evidence, Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951), “more than

a mere scintilla” underpins the agency’s decision such that “a reasonable mind might accept [it] as

adequate to support [the agency’s] conclusion,” Elbit Sys. of Am., LLC v. Thales Visionix, Inc.,

881 F.3d 1354, 1355 (Fed. Cir. 2018) (quoting In re Nuvasive, Inc., 842 F.3d 1376, 1379 (Fed.

Cir. 2016)). Commerce’s determination “accords with law” if it abides by all relevant statutes,

regulations, and judicial precedent and “the agency’s decisional path is reasonably discernable.”

Wheatland Tube Co. v. United States, 161 F.3d 1365, 1369–70 (Fed. Cir. 1998) (citing Ceramica

Regiomontana, S.A. v. United States, 810 F.2d 1137, 1139 (Fed. Cir. 1987)).

DISCUSSION

The Government and Defendant-Intervenor Nucor once again ask this court to sustain

Commerce’s remand results. See Def.’s Br. at 12; Def.-Inter.’s Br. at 9. By contrast, Dillinger

argues that Commerce’s remand results contravene the Federal Circuit’s ruling in Dillinger III,

such that this court should “remand th[e] case back to Commerce with explicit directions to accept

Dillinger’s costs as reported and to stop shifting costs from nonprime to prime plate,” Pl.’s Br. at

22; in the alternative, Plaintiff argues that Commerce’s reliance on Dillinger’s normal books and

records as facts otherwise available imposes an impermissible adverse inference, id. at 14–21.
Court No. 17-00159 Page 18
PUBLIC VERSION

This court will uphold Commerce’s selection of facts otherwise available so long as it is supported

by substantial evidence and otherwise in accordance with law. Ningbo Dafa Chem. Fiber Co. v.

United States, 580 F.3d 1247, 1258 n.5 (Fed. Cir. 2009); see also Pl.’s Oral Arg. Subm. at 4; Def.’s

Oral Arg. Subm. at 3; Def.-Inter.’s Oral Arg. Subm. at 2–3. Concluding that Commerce’s selection

satisfies both requirements, the court sustains Commerce’s Third Remand Results.

I. Commerce’s Selection of Facts Otherwise Available Does Not Contravene
Dillinger III and Otherwise Accords with Law.

In Dillinger IV, this court held that -- strictly speaking -- the Federal Circuit’s ruling in

Dillinger III did not prohibit Commerce from relying on Dillinger’s normal books and records as

facts otherwise available to supply missing cost information for Dillinger’s prime and non-prime

plate. 9 However, since -- in accordance with this court’s most recent remand -- Commerce has

now affirmatively explained its reliance on Dillinger’s normal books and records as facts otherwise

available to supply the missing cost information, this court must proceed to consider in the first

instance whether -- practically speaking -- the Federal Circuit’s holding in Dillinger III precludes

such reliance by necessary implication. The court concludes that it does not after review of the

relevant statutory language, legislative history, and caselaw. As such, Commerce’s reliance on

Dillinger’s normal books and records as facts otherwise available accords with law.

A. The Plain Text of the Statute Does Not Constrain Commerce’s Selection
of Facts Otherwise Available as Plaintiff Suggests.

Dillinger argues that because the “cost of production” is the “the informational gap that is

being filled,” section 1677b(b)(3) of 19 U.S.C. -- which lays out the requirements of “cost of

production” -- constrains what may be used as facts otherwise available under 19 U.S.C.

9
Supra pp. 13–14.
Court No. 17-00159 Page 19
PUBLIC VERSION

§ 1677e(a)(1), see Pl.’s Oral Arg. Subm. at 8; where the Federal Circuit held that Dillinger’s

normal books and records -- which value non-prime plate at their “likely selling price” -- do not

correspond to the “costs of producing . . . the merchandise” under § 1677b, 10 Plaintiff maintains

the necessary implication is that such normal books and records cannot be used as facts otherwise

available to supply such missing cost information under § 1677e(a)(1). Pl.’s Oral Arg. Subm. at

7. By contrast, the Government and Nucor submit that 19 U.S.C. § 1677e(a) is an independent

statutory provision and that § 1677b(b)(3) does not constrain what Commerce may use as facts

otherwise available under § 1677e(a)(1). Def.’s Oral Arg. Subm. at 4; Def.-Inter.’s Oral Arg.

Subm. at 5. The court agrees with the Government and Nucor that the plain language of the statute

does not constrain Commerce’s selection as Plaintiff so suggests.

As noted, the statutory text on facts otherwise available reads in relevant part:

If —
(1) necessary information is not available on the record . . .

the administering authority and the Commission shall, subject to section
1677m(d) 11 of this title, use the facts otherwise available in reaching the
applicable determination under this subtitle.

19 U.S.C. § 1677e(a)(1) (footnote not in original). The statute does not define the phrase “the facts

otherwise available.” Nor does the plain language of § 1677e(a)(1) appear to prescribe or constrain

the sources that Commerce may rely upon in applying “the facts otherwise available” at all, let

alone impute the requirements of § 1677b(b)(3) as a constraint.

10
Supra note 2.
11
No party has identified as relevant to the resolution of this issue 19 U.S.C. § 1677m(d), which
outlines Commerce’s obligation to afford parties an opportunity to remedy deficient submissions.
Court No. 17-00159 Page 20
PUBLIC VERSION

Nor does 19 U.S.C. § 1677b(b)(3) expressly limit what Commerce may rely upon as facts

otherwise available under § 1677e(a)(1). Section 1677b(b)(3) reads:

(3) Calculation of cost of production

For purposes of this part, the cost of production shall be an amount equal to the sum
of—
(A) the cost of materials and of fabrication or other processing of any kind
employed in producing the foreign like product, during a period which
would ordinarily permit the production of that foreign like product in the
ordinary course of business;

(B) an amount for selling, general, and administrative expenses based on
actual data pertaining to production and sales of the foreign like product by
the exporter in question; and

(C) the cost of all containers and coverings of whatever nature, and all other
expenses incidental to placing the foreign like product in condition packed
ready for shipment.

For purposes of subparagraph (A), if the normal value is based on the price of the
foreign like product sold for consumption in a country other than the exporting
country, the cost of materials shall be determined without regard to any internal tax
in the exporting country imposed on such materials or their disposition which are
remitted or refunded upon exportation.

19 U.S.C. § 1677b(b)(3). The court notes that § 1677b(b)(3) says “[f]or purposes of this part, the

cost of production shall be . . .,” 19 U.S.C. § 1677b(b)(3) (emphasis added), and that both § 1677b

and § 1677e fall within Part IV of Subtitle IV of Title 19 of the United States Code. Because the

“Definition; special rules” section of 19 U.S.C § 1677(1)–(36) does not otherwise define “cost of

production,” the court assesses that § 1677b(b)(3) supplies the definition of “cost of production”

for every occurrence of that term throughout Part IV. But as established above, § 1677e(a)(1) does

not contain the phrase “cost of production” or otherwise cite § 1677b.

That said, § 1677b(b)(3)’s definition is still relevant to § 1677e(a)(1), as by the statute’s

plain terms, Commerce can invoke facts otherwise available only when “necessary information is

not available on the record;” and the definitional requirements of § 1677b(b)(3) establish what is
Court No. 17-00159 Page 21
PUBLIC VERSION

“necessary information” with regards to “cost of production.” Accordingly, this court discerns

that § 1677b(b)(3) supplies the criteria by which to assess if there is an informational gap with

regards to “cost of production.” However, where § 1677b(b)(3) does not mention or otherwise

cross-reference § 1677e(a), the court finds no textual support for Plaintiff’s position that

§ 1677b(b)(3) limits what sources Commerce may rely upon as facts otherwise available once the

agency determines that it does not have the information necessary to satisfy the definitional

requirements of “cost of production.”

Discerning no such limits in the statutory text, the court next considers the relevant

legislative history.

B. The Legislative History is Inconclusive.

The Statement of Administrative Action (“SAA”) is the legislative history of the Uruguay

Round Agreements Act (“URAA”), Pub.L. No. 103–465, 108 Stat. 4809 (1994), which codified

amendments to § 1677e(a). See Statement of Administrative Action, H.R.Rep. No. 103–316, at

869 (1994), reprinted in 1994 U.S.C.C.A.N. 1440, at 4198–99; see also Ningbo Dafa, 580 F.3d at

1255. 12 Regarding “determinations on the basis of the facts available,” specifically, the SAA states

in relevant part:

New section 776(a) requires Commerce and the Commission to make
determinations on the basis of the facts available where requested information is
missing from the record or cannot be used because, for example, it has not been
provided, it was provided late, or Commerce could not verify the information.
Section 776(a) makes it possible for Commerce and the Commission to make their
determinations within the applicable deadlines if relevant information is missing
from the record. In such cases, Commerce and the Commission must make their
determinations based on all evidence of record, weighing the record evidence to
determine that which is most probative of the issue under consideration.

12
By statute, the SAA is “an authoritative expression . . . concerning the interpretation and
application of the Uruguay Round Agreements and this Act in any judicial proceeding in which a
question arises concerning such interpretation or application.” 19 U.S.C. § 3512(d).
Court No. 17-00159 Page 22
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...

[N]either Commerce nor the Commission must prove that the facts available are
the best alternative information. Rather, the facts available are information or
inferences which are reasonable to use under the circumstances. As noted above,
the Commission balances all record evidence and draws reasonable inferences in
reaching its determinations. It is not possible for the Commission to demonstrate
that its inferences are the same as those it would have made if it had perfect
information. Similarly, where Commerce uses the facts available to fill gaps in the
record, proving that the facts selected are the best alternative facts would require
that the facts available be compared with the missing information, which obviously
cannot be done.

1994 U.S.C.C.A.N. at 4198–99.

In an exemplification of “Judge Leventhal’s memorable phrase” that “investigation of

legislative history” can become “an exercise in ‘looking over a crowd and picking out your

friends,’” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (quoting Patricia

M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term,

68 Iowa L. Rev. 195, 214 (1983)), Plaintiff and Defendants both claim the SAA as decisive support

for their respective conceptions of the interplay between § 1677e(a)(1) and § 1677b(b)(3).

For example, Dillinger latches onto the statement that “Commerce and the Commission

must make their determinations based on . . . that which is most probative of the issue under

consideration,” 1994 U.S.C.C.A.N. at 4198 (emphasis added), to suggest that, in accordance with

§ 1677b(b)(3)’s definition, “the selection of facts available for the actual costs of non-prime

products must correspond, as closely as possible, to the cost of materials and of fabrication or other

processing employed in producing the non-prime products,” Pl.’s Br. at 1–2 (emphasis added);

Pl.’s Oral Arg. Subm. at 6. By contrast, the Government and Nucor invoke the SAA’s statements

that facts otherwise available must be “reasonable to use under the circumstances” and need not

be “the best alternative information,” 1994 U.S.C.C.A.N. at 4198, as support for their position that

the relied upon dataset must only be “a reasonable approximation of Dillinger’s costs,” Def.-
Court No. 17-00159 Page 23
PUBLIC VERSION

Inter.’s Oral Arg. Subm. at 8; Def.’s Oral Arg. Subm. at 3 (substantively similar), without

“correspond[ing] to the cost of materials or other processing employed in producing non-prime

products” under § 1677b(b)(3), Def.’s Br. at 9.

While parties contest whether the facts otherwise available must be the “most probative”

or “best” information, see 1994 U.S.C.C.A.N. at 4198 (requiring Commerce to rely on the “most

probative” information, while acknowledging that “[i]t is not possible” to “prov[e] that the facts

selected are the best alternative facts”), everyone agrees that there must be at least some kind of

correlation between the “issue under consideration” -- i.e., the gap to be filled -- and the selected

record evidence, see id. (directing Commerce to use that which is “probative of the issue under

consideration”). Because “[l]egislative history . . . is meant to clear up ambiguity, not create it,”

Milner v. Dep’t of Navy, 562 U.S. 562, 574 (2011), and because the plain text of § 1677e(a)(1)

contains no express indications that “the facts otherwise available” must be the “best” alternative

information to “reach[] the applicable determination,” see 19 U.S.C. § 1677e(a)(1), the court

accepts only the baseline point of agreement that the selected facts otherwise available must relate

in some way to the issue under consideration: Here, the gap to be filled is the cost of production

information for prime and non-prime plate; thus, Commerce’s selected facts otherwise available

must somehow correlate to Dillinger’s costs. 13

But what exactly is required to establish such a correlation remains “murky, ambiguous,

and contradictory.” Exxon Mobil Corp., 545 U.S. at 568. Specifically, the SAA does not address

-- let alone resolve -- whether this court should impute the requirements of the statutory provision

13
Such a conclusion aligns with the Federal Circuit’s prior treatment of the SAA. See, e.g., Ningbo
Dafa, 580 F.3d at 1252 (“When § 1677e(a) applies, Commerce may use as ‘facts available’ any
‘information or inferences which are reasonable to use under the circumstances’ to make the
applicable determination or substitute for the missing information.” (emphasis added) (quoting
1994 U.S.C.C.A.N. at 4198)).
Court No. 17-00159 Page 24
PUBLIC VERSION

underlying the informational gap as the standard by which to assess the “reasonableness” of the

agency’s selection of facts otherwise available. See 1994 U.S.C.C.A.N. at 4198 (instructing the

selected facts otherwise available must be “reasonable to use under the circumstances”). This

court looks to related Federal Circuit caselaw to discern that it should not.

C. Federal Circuit Caselaw Supports that § 1677b(b)(3) Does Not Constrain
Commerce’s Selection of Facts Otherwise Available Under § 1677e(a)(1).

Although the Federal Circuit has not spoken on the precise issue of the case at bar, this

court distills and applies principles from related decisions to conclude that the requirements of

§ 1677b(b)(3) do not constrain Commerce’s selection of facts otherwise available under

§ 1677e(a)(1).

The court first considers the Federal Circuit’s opinion in Nan Ya Plastics Corp. v. United

States, 810 F.3d 1333, 1346 (Fed. Cir. 2016). There, the Federal Circuit considered whether

Commerce’s selection of certain record evidence as adverse facts available under 19 U.S.C.

§ 1677e(b) was impermissible because it, inter alia, “relie[d] upon incomplete criteria in light of

other statutory and regulatory criteria.” Nan Ya, 810 F.3d at 1346. The Federal Circuit first laid

out the statutory text at issue, 14 which read:

If [Commerce] . . . finds that an interested party has failed to cooperate by not acting
to the best of its ability to comply with a request for information from [Commerce]
. . . , [Commerce] . . . , in reaching the applicable determination under this subtitle,
may use an inference that is adverse to the interests of that party in selecting from
among the facts otherwise available. Such adverse inference may include reliance
on information derived from—

(1) the petition,

(2) a final determination in the investigation under this subtitle,

14
The Federal Circuit noted that “[d]uring the pendency of the appeal, Congress amended . . . [the]
provisions at issue.” Nan Ya, 810 F.3d at 1337 n.2. Although the Federal Circuit’s decision
considered the pre-amended text of 19 U.S.C. § 1677e(b), the specific textual changes are not
relevant here.
Court No. 17-00159 Page 25
PUBLIC VERSION

(3) any previous review under section 1675 of this title or determination
under section 1675b of this title, or

(4) any other information placed on the record.

Id. at 1347 (quoting 19 U.S.C. § 1677e(b) (2006), amended by Trade Preferences Extension Act

of 2015, Pub. L. No. 114–27, 129 Stat. 362). In light of this text, the Federal Circuit concluded

“[t]he statute simply does not require Commerce to select facts that . . . align with standards

articulated in other statutes and regulations.” Id.; see also Deacero S.A.P.I. de C.V. v. United

States, 996 F.3d 1283, 1301 (Fed. Cir. 2021) (quoting Nan Ya, 810 F.3d at 1347); Papierfabrik

August Koehler SE v. United States, 843 F.3d 1373, 1381 (Fed. Cir. 2016) (quoting Nan Ya, 810

F.3d at 1347). Thus, where § 1677e(b) did not “contain[] any of the requirements [Nan Ya]

allege[d],” the Federal Circuit declined to “impose conditions not present in or suggested by the

statute’s text.” 810 F.3d at 1347.

This court acknowledges that Nan Ya dealt with adverse facts available -- whereas the case

at bar deals only with facts otherwise available or “neutral facts available” -- and that “Commerce

has greater latitude in determining dumping margins when dealing with [adverse facts available].”

Albemarle Corp. & Subsidiaries v. United States, 821 F.3d 1345, 1357 n.12 (Fed. Cir. 2016).

However, because the Federal Circuit’s decision in Nan Ya turned on foundational tenets of

statutory interpretation -- i.e., parsing the statute’s plain text -- and not on the particular

characteristics of adverse facts available, this court deems transferrable the Federal Circuit’s core

interpretive conclusion: namely that, where -- as with 19 U.S.C. § 1677e(a)(1) -- the plain text

does not “require Commerce to select facts that . . . align with [any] standards articulated in other

statutes and regulations,” Nan Ya, 810 F.3d at 1347, the court cannot agree with Dillinger that

Commerce’s selection of replacement cost information is constrained by the definitional “cost of
Court No. 17-00159 Page 26
PUBLIC VERSION

production” requirements under § 1677b(b)(3).

On first glance, such a conclusion might seem difficult to reconcile with the Federal

Circuit’s further opinion in Ningbo Dafa, 580 F.3d at 1254–58. There, the Federal Circuit

addressed whether 19 U.S.C. § 1677b(c)(1) -- which lays out procedures for calculating normal

value in non-market economy cases -- precludes Commerce from invoking facts otherwise

available under § 1677e(a) to supply information on “factors of production” missing from the

record. Id.

Section 19 U.S.C. § 1677b(c)(1) instructs:

(c) Nonmarket economy countries

(1) In general

If—
(A) the subject merchandise is exported from a nonmarket economy
country, and

(B) the administering authority finds that available information does
not permit the normal value of the subject merchandise to be
determined under subsection (a),

the administering authority shall determine the normal value of the subject
merchandise on the basis of the value of the factors of production utilized
in producing the merchandise and to which shall be added an amount for
general expenses and profit plus the cost of containers, coverings, and other
expenses. Except as provided in paragraph (2), the valuation of the factors
of production shall be based on the best available information regarding the
values of such factors in a market economy country or countries considered
to be appropriate by the administering authority.

19 U.S.C. § 1677b(c)(1) (emphasis added). 15 Pursuant to Commerce’s “longstanding policy that

market economy prices are the ‘best available information’ [to value factors of production] under

15
Commerce in Ningbo Dafa did not purport to rely on the exception in paragraph (2).
Court No. 17-00159 Page 27
PUBLIC VERSION

19 U.S.C. § 1677b(c)(1),” Commerce requested that Ningbo Dafa Chemical Fiber Company

(“Ningbo”) -- a Chinese manufacturer -- provide invoices for its market economy purchases of a

certain input used to produce the subject merchandise under investigation for dumping. Ningbo

Dafa, 580 F.3d at 1251, 1257. Where Ningbo supplied Commerce with invoices from its qualified

market economy purchases, but not in the “form and manner requested” by Commerce, the agency

invoked facts otherwise available under 19 U.S.C. § 1677e(a)(2)(B) 16 to supply the missing input

values. In litigation before this court and the Federal Circuit, Ningbo argued that § 1677b(c)(1)’s

“best available information” standard barred Commerce from invoking facts otherwise available

to value factors of production. Ningbo Dafa, 580 F.3d at 1254.

In rejecting Ningbo’s position, the Federal Circuit delineated “the proper interpretation and

interaction of 19 U.S.C. § 1677b(c)(1) and § 1677e(a).” Id. The court noted that “[b]oth § 1677b

and § 1677e are found in Subtitle IV of Title 19 of the United States Code” and that

16
19 U.S.C. § 1677e(a)(2) instructs, in relevant part:

(a) In general

If—
...
(2) an interested party or any other person—

...

(B) fails to provide [information that has been requested by the
administering authority] by the deadlines for submission of the information
or in the form and manner requested, subject to subsections (c)(1) and (e)
of section 1677m of this title,
...
the administering authority and the Commission shall, subject to section 1677m(d)
of this title, use the facts otherwise available in reaching the applicable
determination under this subtitle.

19 U.S.C. § 1677e(a)(2) (emphasis added).
Court No. 17-00159 Page 28
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Section 1677e(a) specifically provides: “If . . . (1) necessary information is not
available on the record, or (2) an interested party or any other person . . . fails to
provide such information . . . in the form and manner requested,” Commerce “shall
. . . use the facts otherwise available in reaching the applicable determination under
this subtitle.”

Id. (alterations and emphasis in original) (quoting 19 U.S.C. § 1677e(a)). Accordingly, where

Commerce “shall . . . use the facts otherwise available in reaching the applicable determination

under this subtitle,” and where § 1677b falls within “this subtitle,” the Federal Circuit concluded

that Commerce is not barred from relying on facts otherwise available under § 1677e(a) to value

factors of production under § 1677b(c)(1). Id. Furthermore, the court noted that § 1677b(c)(1)

“provides that in NME investigations, Commerce ‘shall’ use the ‘best available information

regarding the values of such factors [of production].” Id. (alteration in original). Thus, bringing

the pieces together, the Federal Circuit held that “under § 1677e(a), where necessary information

is unavailable on the record or a party fails to provide requested information, Commerce ‘shall’

use the ‘facts otherwise available’ to fill information gaps when determining the value of the

factors of production under § 1677b(c)(1) using the ‘best available information.’” Id. (emphasis

added).

This court notes that it might be tempting to infer from Ningbo Dafa that the standards

and/or requirements of the statutory provision underlying the informational gap to be filled govern

the selection of facts otherwise available; there the Federal Circuit imputed “the ‘best available

information’ mandate” of § 1677b(c)(1) into Commerce’s application of facts otherwise available

under § 1677e(a) to value factors of production. Id. at 1258 (quoting § 1677b(c)(1)). However,

to divine any such overarching, “per se” rule would not only overread the Federal Circuit’s holding
Court No. 17-00159 Page 29
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in Ningbo Dafa, 17 but also would ignore unique aspects of the “interaction of 19 U.S.C.

§ 1677b(c)(1) and § 1677(e)(a).” Id. at 1254.

Specifically, recall that § 1677b(c)(1) states “[e]xcept as provided in paragraph (2), the

valuation of the factors of production shall be based on the best available information.” 19 U.S.C.

§ 1677b(c)(1) (emphasis added). This particular language -- “except as provided in paragraph (2)”

-- expressly establishes the only circumstances in which the factors of production need not be

based on the “best available information.” Because paragraph (2) does not mention or otherwise

implicate the facts otherwise available provision of § 1677(e)(a), Commerce is required -- by

§ 1677b(c)(1)’s plain terms -- to adhere to the “‘best available information’ mandate” in applying

facts otherwise available under § 1677e(a) to value factors of production. See Conn. Nat.’l Bank

v. Germain, 503 U.S. 249, 253–54 (1992) (“[C]ourts must presume that a legislature says in a

statute what it means and means in a statute what it says there.”). By contrast, 19 U.S.C.

§ 1677b(b)(3) -- the provision at issue in the case at bar -- contains no equivalent limiting language.

Supra pp. 18–21 (establishing that § 1677b(b)(3) provides the definition of “cost of production” in

the ordinary course, but does not expressly cabin Commerce’s discretion in selecting facts

otherwise available to supply missing cost of production information).

The Federal Circuit’s pronouncement in Ningbo Dafa that Commerce must adhere to the

“best available information” mandate of § 1677b(c)(1) in filling “factor of production”–related

gaps via facts otherwise available, 580 F.3d at 1254, exists comfortably alongside the appeals

court’s further pronouncement in Nan Ya that Commerce is “simply . . . not require[d] . . . to select

17
After all, the Federal Circuit in Ningbo Dafa undertook only to resolve whether § 1677b(c)(1)’s
“best available information” standard barred Commerce from invoking facts otherwise available
under § 1677e(a) when valuing factors of production, and not to delineate any “per se” standards
or methodologies for applying facts otherwise available.
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facts . . . that align with standards articulated in other statutes and regulations,” 810 F.3d at 1347.

This is so,18 because the Federal Circuit in Nan Ya parsed only the relevant plain text of 19 U.S.C.

§ 1677e, and not that of the “other statutory and regulatory criteria” that Nan Ya claimed

Commerce’s selection of adverse facts available failed to meet. 810 F.3d at 1346. Thus, it is

entirely consistent to hold that the plain language of § 1677e(a)–(b) -- without more -- “does not

require Commerce to select facts that . . . align with standards articulated in other statutes and

regulations,” id. at 1347, while holding open the possibility that -- where explicit -- the standards

and requirements articulated in other statutes and regulations can override or cabin Commerce’s

discretion under § 1677e(a)–(b). 19

Thus, applying the principles distilled from the Federal Circuit’s decisions in Nan Ya and

Ningbo Dafa, where the plain text of § 1677e(a) does not prescribe the sources that Commerce

may use when applying facts otherwise available, and where the plain text of § 1677b(b)(3) on

cost of production does not expressly override or cabin Commerce’s discretion under § 1677e(a),

this court concludes that § 1677b(b)(3)’s definitional requirements do not constrain Commerce’s

selection of facts otherwise available to fill in the missing cost information.

18
Not merely because the Federal Circuit’s opinion in Nan Ya addressed the application of adverse
facts available, as opposed to facts otherwise available; as this court explained above, supra p. 25,
the Federal Circuit’s conclusion in Nan Ya turned on a plain text rationale that applies with equal
force to the language of 19 U.S.C. § 1677e(a) on facts otherwise available.
19
The court notes that such an interpretation accords with the “whole act” canon of statutory
construction. See Richards v. United States, 369 U.S. 1, 11 (1962) (“We believe it fundamental
that a section of a statute should not be read in isolation from the context of the whole Act . . . .”);
see also Norman Singer & Shambie Singer, 2 Sutherland Statutes and Statutory Construction
§ 46:5 (7th ed. 2022) (“[E]ach part or section of a statute should be construed in connection with
every other part or section to produce a harmonious whole.”). Indeed, a contrary conclusion could
give rise to tension between 19 U.S.C. § 1677e(a) -- which by its plain text does not constrain what
sources Commerce may use when applying facts otherwise available -- and § 1677b(c)(1) -- which
the Federal Circuit interprets as requiring adherence to that provision’s “best available
information” standard even in a facts otherwise available scenario.
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D. Summation: Commerce’s Reliance on Dillinger’s Normal Books and
Records as Facts Otherwise Available Does Not Contravene Dillinger III
and Otherwise Accords with Law.

In sum, because the Federal Circuit in Dillinger III held that Plaintiff’s normal “books and

records did not reasonably reflect the costs associated with the production and sale of the

merchandise as required by 19 U.S.C. § 1677b(f),” 981 F.3d at 1321, this court had to confront --

in the first instance -- whether the Federal Circuit’s holding precludes by necessary implication

Commerce’s reliance on said normal books and records as facts otherwise available under

§ 1677e(a)(1) to supply the missing cost information. Plaintiff has argued fervently that it does,

submitting that where “cost of production” is “the informational gap that is being filled,” Pl.’s Oral

Arg. Subm. at 8, section 1677b(b)(3) requires that “the selection of facts available . . . must

correspond, as closely as possible, to the cost of materials and of fabrication or other processing

employed in produc[tion],” Pl.’s Br. at 1–2.

This court disagrees. After review of the plain language of the relevant statutory provisions

and related Federal Circuit caselaw, the court declines to impute the definitional requirements of

§ 1677b(b)(3) as the standard by which it assesses the “reasonableness” of Commerce’s reliance

on Dillinger’s normal books and records as facts otherwise available under § 1677e(a)(1) to supply

the missing cost information. See 1994 U.S.C.C.A.N. at 4198 (instructing that the selected facts

otherwise available must be “reasonable to use under the circumstances”).

Nevertheless, after review of the relevant legislative history, this court concludes that there

must be at least some kind of connection between the gap to be filled and the selected facts

otherwise available, even if the selected facts otherwise available need not be the “best alternative

information.” See 1994 U.S.C.C.A.N. at 4198 (directing Commerce to use that which is “probative

of the issue under consideration” (emphasis added)). Here, the gap to be filled is the costs of
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producing the prime and non-prime plate. This leads the court -- in closing -- to resolve a further

question posed by the parties: whether the Federal Circuit’s holding in Dillinger III is sufficiently

broad so as to preclude a finding of any such connection -- even without imputing the underlying

requirements of § 1677b(b)(3) as the guiding standard -- between Dillinger’s normal books and

records and the missing cost information. This court concludes that it is not. 20

As the Federal Circuit explained in Dillinger III:

It is unclear . . . whether Commerce’s calculation of normal value involved
determining constructed value (determining the sum of “the cost of materials and
fabrication or other processing of any kind employed in producing the
merchandise” and other factors under 19 U.S.C. § 1677b(e)), or involved
determining cost of production so as to exclude home market sales made below cost
of production under § 1677b(b)(3). In either event, § 1677b(f) applies. 21

981 F.3d at 1321 n.1 (emphasis added). The Federal Circuit further interpreted “the legislative

history of section 1677b(f) . . . [and] its plain meaning[] [to] indicate[] Congress intended that

Commerce rely on a producer’s or exporter’s books and records if they . . . reasonably reflect the

costs of production.” Dillinger III, 981 F.3d at 1323 (emphasis added). Where “costs of

production” is a defined term, see 19 U.S.C. § 1677b(b)(3), this court concludes that the Federal

Circuit’s ruling in Dillinger III -- that “Dillinger’s books and records did not reasonably reflect the

costs associated with the production and sale of the merchandise as required by 19 U.S.C.

20
This conclusion likewise applies to the Federal Circuit’s decision in IPSCO, Inc. v. United
States, 965 F.2d 1056 (Fed. Cir. 1992).
21
Again, § 1677b(f)(1)(A) instructs:

Costs shall normally be calculated based on the records of the exporter or producer
of the merchandise, if such records are kept in accordance with the generally
accepted accounting principles of the exporting country (or the producing country,
where appropriate) and reasonably reflect the costs associated with the production
and sale of the merchandise.

19 U.S.C. § 1677b(f)(1)(A) (emphasis added).
Court No. 17-00159 Page 33
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§ 1677b(f)” -- turned on a determination that Dillinger’s books and records did not satisfy the

definitional requirements of § 1677b(b)(3). 981 F.3d at 1321.

Because this court has already resolved not to impute § 1677b(b)(3)’s definitional

requirements as the standard for assessing the “reasonableness” of Commerce’s selection of facts

otherwise available, it -- correspondingly -- does not consider itself precluded from finding that

Dillinger’s normal books and records bear some kind of connection to “the issue under

consideration,” i.e., costs, for purposes of § 1677e(a). See 1994 U.S.C.C.A.N. at 4198. Thus, this

court concludes that Commerce’s reliance on Dillinger’s normal books and records as facts

otherwise available does not contravene Dillinger III and otherwise accords with law.

II. Commerce’s Selection of Facts Otherwise Available is Supported by Substantial
Evidence.

The court notes, however, that it is not enough to hold that Commerce’s selection of facts

otherwise available accords with law; Commerce’s reliance on Dillinger’s normal books and

records under § 1677e(a) to supply the missing cost information must also be supported by

substantial evidence. See Ningbo Dafa, 580 F.3d at 1256 (“[I]t is not enough that the law permits

Commerce to apply ‘facts available’ in valuing factors of production. . . . In addition, substantial

evidence must support Commerce’s” specific selection of facts otherwise available.).

Before delving into the substantial evidence review, the court pauses briefly to demarcate

the scope of its inquiry. In light of the preceding discussion, Commerce need only show that

substantial evidence supports that its selected facts otherwise available are “probative of the issue

under consideration” such that they relate in some way to Dillinger’s costs. Making such a

showing does not require Commerce to show that substantial evidence supports that its selected

facts otherwise available are the “best alternative information” or that they meet the standards

articulated in other statutes, such as 19 U.S.C. § 1677b(b)(3) on costs of production. Accordingly,
Court No. 17-00159 Page 34
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this court’s substantial evidence inquiry here is a narrow one: Accounting for detracting evidence,

does “more than a mere scintilla” support that Commerce’s selected facts available -- i.e.,

Dillinger’s normal books and records -- are probative of the missing cost information such that “a

reasonable mind might accept” their use under the circumstances? Elbit, 881 F.3d at 1356. The

court concludes that Commerce has met this reasonableness standard and, thus, sustains the Third

Remand Results.

A. Dillinger’s Normal Books and Records Are “Probative of the Issue under
Consideration.”
Commerce asserts “there is record evidence to demonstrate that the use of the likely selling

price of non-prime products” -- as recorded in Dillinger’s normal books and records -- “results in

a reasonable allocation of total costs,” Third Remand Results at 15, and this court agrees.

Commerce first notes the undisputed fact that “the production of non-prime products is an

inevitable consequence of its production of prime products.” Id. at 5. Commerce next cites to

Note II.4.1 of Dillinger’s audited 2015 financial statement, which states:

II.4. Stocks and work-in-progress

II.4.1. Modes and Methods of Evaluation

...
x Work-in-progress, 1st choice intermediate and finished products: These
stocks are valued at their weighted-average production cost, this cost
including direct and indirect costs that can be reasonably related with
their production.

x The stock of 2nd choice sheet metal is valued at its likely selling prices.

Id. at 15 (citing Dillinger France S.A. Section A Resp. app. 18, at 600, June 29, 2016, ECF No.

158). Commerce interprets this note to constitute an “acknowledg[ment]” by Dillinger’s auditor

that any “lost value attributable to the production of non-prime products is an indirect cost of

producing prime products,” such that the figures in Dillinger’s normal books and records
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“recognize[] the total direct costs (i.e., direct materials and conversion costs) and indirect costs

(i.e., the lost value of the non-prime plates) attributable to the production of prime plates.” Id. at

15–16. Accordingly, Commerce concludes that where “Dillinger failed to provide the [actual cost]

information requested by Commerce, which is solely in its control,”

[r]elying on Dillinger’s normal books and records, as facts available, to value both
the prime and non-prime merchandise is the only reasonable approach . . . . [I]t
recognizes that, where Dillinger cannot produce 98 perfect plates without
producing two imperfect plates, the lost value of the two imperfect plates is actually
a cost of producing the 98 perfect ones and should be accounted for as such.

Id. at 6, 14. This court assesses that in light of the above identified record evidence and the

agency’s explanation, “more than a mere scintilla” supports that Dillinger’s normal books and

records are “probative” of the missing cost information, such that they are “reasonable to use under

the circumstances.” Elbit Sys., 881 F.3d at 1355; 1994 U.S.C.C.A.N. at 4198.

B. Dillinger’s Counterarguments Are Unavailing.

Plaintiff submits several counterarguments as to why it is “unreasonable” to rely on

Dillinger’s normal and books records as facts otherwise available, including that: (1) “the use of

the likely selling price in place of the cost of production was specifically prohibited by the” Federal

Circuit, Pl.’s Br. at 7; (2) “Commerce fails to explain how this ‘likely selling price’ in any way

corresponds to the cost of materials and of fabrication or other processing employed in producing

the non-prime products,” id. at 2; and that (3) “[t]here is no provision in the statute to reduce the

costs of materials, fabrication and processing employed in producing the merchandise by the ‘lost

value’ resulting from the sale of the merchandise,” id. at 8.
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While Commerce responds to Dillinger’s counterarguments on the merits in the Third

Remand Results, 22 as a threshold matter, each of these arguments presupposes that this court will

impute the underlying requirements of 19 U.S.C. § 1677b(b)(3) as the standard for assessing

reliance on Dillinger’s normal books and records as facts otherwise available to supply the missing

cost information. Because this court has already held that the underlying requirements of

§ 1677b(b)(3) do not here govern, such that the Federal Circuit’s Dillinger III decision is not here

decisive, supra, the court rejects the above counterarguments outright.

Dillinger’s only counterargument that requires further discussion is that Commerce’s

proffered rationale -- i.e., that any “lost value attributable to the production of non-prime products

is an indirect cost of producing prime products,” Third Remand Results at 15 -- concedes “that the

sales price of non-prime products does not cover the costs of production of those products,” such

that the “likely selling price” in Dillinger’s normal books and records “bears no relationship with

the actual costs of production,” Pl.’s Br. at 8, 21. While this argument has some initial appeal,

Commerce explains that it rests on unsubstantiated assumptions. This is so, because “the ‘actual’

costs of nonprime products are dependent on the physical characteristics of the non-prime products

(e.g., products which undergo more processing have higher processing costs),” and Dillinger has

not provided any information on those physical characteristics necessary to establish their actual

22
For example, Dillinger argues that where the production of non-prime products is an inevitable
consequence of the production of prime products, a simple comparison of the [[ ]] Euros/ton
likely selling price for non-prime plate to the lowest total cost of manufacture reported for prime
plate of [[ ]] Euros/ton establishes that the likely selling price recorded in Dillinger’s normal
books and records is not “probative” of the cost of producing the non-prime products. Pl.’s Br. at
2–3. Commerce responds on the merits that Dillinger’s argument rests on several unsubstantiated
assumptions, including that: (1) Plaintiff has in fact reported the actual costs of producing the
prime products; and that (2) the prime and non-prime products incurred the same processing costs
(which is unknown because Dillinger did not submit the physical characteristics of the non-prime
plate necessary to derive said processing costs). See Second Remand Results at 6; Third Remand
Results at 12.
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costs. See Def.’s Suppl. Qs. Resp. at 2. Commerce is, therefore, faced with a situation where

Dillinger did not submit “information which would have permitted Commerce to determine the

actual costs of producing non-prime products.” Third Remand Results at 16. To the extent that

the selling price is lower than the cost of producing the non-prime products -- again, a fact that

Commerce does not know on the current record -- “Commerce’s selected approach recognizes that

. . . the difference between the unknowable ‘actual’ costs of producing the non-prime products and

their selling price is the lost value of production to be borne as an indirect cost of producing the

prime products.” Def.’s Oral Arg. Subm. at 9; see also Third Remand Results at 16 (substantively

similar).

Because this explanation establishes that Dillinger’s normal books and records are

“probative of the issue under consideration,” i.e., costs, and because Dillinger’s counterarguments

rest either on imputing the definitional requirements of 19 U.S.C. § 1677b(b)(3) as the governing

standard or on unsubstantiated assumptions, Commerce’s selection of facts otherwise available is

supported by substantial evidence.

C. Summation: Under the Substantial Evidence Standard, Ties Go to the
Agency.

Dillinger insists that “[t]he most accurate information on the administrative record” -- and

thereby, “[t]he most reasonable calculation of actual production costs of non-prime plate” -- are

the figures that Dillinger derived via its percentage yield approach. Pl.’s Br. at 6; see also id. at

11(“[T]he guiding principle for choosing what facts to apply is accuracy in the given case.”

(quoting Shandong Rongxin Imp. & Exp. Co. v. United States, 43 CIT __, __, 355 F. Supp. 3d

1365, 1370 (2019))). But the Federal Circuit has established that a determination by Commerce

is “‘accurate’ if it is correct as a mathematical and factual matter, [and] thus supported by

substantial evidence.” Nan Ya, 810 F.3d at 1344. Given the broad discretion that Commerce has
Court No. 17-00159 Page 38
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in selecting facts otherwise available, supra pp. 18–33 (establishing that the plain language of 19

U.S.C. § 1677e(a) imposes no constraints, such that Commerce’s selection of facts otherwise

available need only be “reasonable under the circumstances” and not necessarily the “best

alternative information”), substantial evidence supports that Dillinger’s normal books and records

are “probative” of costs and, therefore, “reasonable” to supply the missing cost information.

It may well be that Dillinger’s proposed dataset also represents a “reasonable” cost

allocation method. 23 But where, as here, substantial evidence supports Commerce’s selection of

facts otherwise available, a court “may [not] displace the [agency’s] choice between two fairly

conflicting views, even [if] the court [might] justifiably have made a different choice had the matter

been before it de novo.” Universal Camera, 340 U.S. at 477; see also In re Cree, Inc., 818 F.3d

694, 701 (Fed. Cir. 2016) (“[W]here two different, inconsistent conclusions may reasonably be

drawn from the evidence in record, an agency’s decision to favor one conclusion over the other is

the epitome of a decision that must be sustained upon review for substantial evidence.” (alteration

in original) (quoting In re Jolley, 308 F.3d 1317, 1329 (Fed. Cir. 2002))). In short, “[u]nder the

substantial evidence standard, ties go to the agency.” MTD Prods. Inc. v. United States, 47 CIT

__, __, Slip Op. 23-34, at 21 (Mar. 16, 2023).

III. Commerce’s Selection of Facts Otherwise Available Does Not Impose an
Impermissible Adverse Inference.

Having held that Commerce’s selection of facts otherwise available is supported by

substantial evidence and in accordance with law, the court proceeds to consider Plaintiff’s

alternative argument: that reliance on Dillinger’s normal books and records as facts otherwise

available imposes an impermissible adverse inference. Pl.’s Br. at 14–21; see Oral Arg. at 24:18–

23
A point this court need take no view on.
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32 (assertion by Plaintiff’s counsel that “the adverse inference is a supplemental argument . . . the

real main argument is that it’s not the most probative”).

As discussed extensively above, if “necessary information is not available on the record,”

19 U.S.C. § 1677e(a)(1), Commerce “shall . . . use facts otherwise available” to fill informational

gaps and render determinations, id. § 1677e(a). Additionally, where Commerce makes a “valid

decision to use facts otherwise available,” Shandong Huarong, 30 CIT at 1301, 435 F. Supp. 2d at

1289, Commerce may then make the additional decision to “use an inference that is adverse to the

interests of [a respondent] in selecting from among the facts otherwise available” provided that

Commerce supportably finds the respondent “has failed to cooperate by not acting to the best of

its ability,” Nippon Steel, 337 F.3d at 1380–81 (quoting 19 U.S.C. § 1677e(b)(1)).

Commerce does not here purport to have imposed an adverse inference by relying on

Dillinger’s normal books and records to fill the cost-related informational gap. See Third Remand

Results at 17. Nevertheless, Dillinger maintains that “[b]y rejecting all of the cost of production

figures . . . and applying an unreasonably low cost of production to non-prime plate based upon

resale value, Commerce is applying an adverse inference that . . . increases the dumping margin.”

Pl.’s Br. at 21.

The problem for Dillinger is that it “provides no basis for concluding that relying on [its

normal books and records] imposed an ‘adverse inference’ other than to assert that it is so.” Def.-

Inter.’s Oral Arg. Subm. at 13. Dillinger has provided no authority in which a court has imputed

an adverse inference into Commerce’s selection of facts otherwise available. See Huvis Corp v.

United States, 31 CIT 1803, 1808, 525 F. Supp. 2d 1370, 1376 (2007) (rejecting an argument that

Commerce’s selected facts otherwise available were “so high that they must be characterized as

‘adverse’” where respondent “cite[d] no statute, regulation, or case law for its claim”), aff’d, 570
Court No. 17-00159 Page 40
PUBLIC VERSION

F.3d 1347 (Fed. Cir. 2009). 24 Instead, Dillinger merely notes that reliance on its own preferred

facts otherwise available would reduce its dumping margin from 6.15 percent to 5.91 percent. Pl.’s

Oral Arg. Subm. at 13. This is insufficient.

As Defendant-Intervenor persuasively argues:

If Commerce were deemed to have imposed an adverse inference simply because a
party can propose “facts available” that would result in a lower margin[,] [that]
would effectively create a “favorable inference” standard in the statute. Such a
standard, however, is not required by the statute or implicated by the SAA.

Def.-Inter.’s Oral Arg. Subm. at 12. In concluding that Commerce did not here impose an

impermissible adverse inference, the court does not foreclose the possibility that Commerce may

in the future select as facts otherwise available information that “must be characterized as ‘adverse’

under the antidumping law.” Huvis, 31 CIT at 1808, 525 F. Supp. 2d at 1376 (citation omitted).

The court merely holds that Dillinger has not made such a showing in the case at bar.

CONCLUSION

For the foregoing reasons, the court concludes that Commerce’s selection of facts

otherwise available to supply the missing cost of production information for Dillinger’s prime and

non-prime plate was supported by substantial evidence and otherwise in accordance with law.

Accordingly, the court sustains Commerce’s Third Remand Results.

SO ORDERED.
/s/ Gary S. Katzmann
Gary S. Katzmann, Judge
Dated: August 15, 2023
New York, New York

24
Dillinger’s citations to National Steel Corp. v. United States, 18 CIT 1126, 870 F. Supp. 1130
(1994), Garg Tube Export LLP v. United States, 45 CIT __, 527 F. Supp. 3d 1362 (2021), and
Hyundai Electric & Energy Systems v. United States, 2022 WL 3273811 (Fed. Cir. Aug. 11, 2022)
are inapposite. None of these cases involved a court imputing an adverse inference into
Commerce’s selection of facts otherwise available. Contra Huvis, 570 F.3d at 1353–54
(disagreeing “that the constructed market price . . . constitute[s] an adverse inference against
[respondent]”).