Slip Op. 19-39

UNITED STATES COURT OF INTERNATIONAL TRADE 

SEVERSTAL EXPORT GMBH AND PAO 

SEVERSTAL, 

 Plaintiffs, 

v. 

UNITED STATES, 

 Defendant, 

 Before: Leo M. Gordon, Judge 

 Court No. 17-00209 

OPINION 

[Commerce’s Final Results sustained.] 

 Dated: March 27, 2019 

 Daniel J. Cannistra, of Crowell & Moring, LLP of Washington, DC argued for 

Plaintiff Severstal Export GmbH and PAO Severstal. 

Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil 

Division, U.S. Department of Justice, of Washington, DC, argued for Defendant United 

States. With her on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. 

Davidson, Director, and Renee A. Burbank, Senior Trial Counsel. Of counsel was 

Christopher P. Hyner, Attorney, Office of the Chief Counsel for Trade Enforcement and 

Compliance, U.S. Department of Commerce, of Washington, DC. 

 Tessa V. Capeloto, of Wiley Rein of Washington, DC, argued for DefendantIntervenor Nucor Corp. With her on the brief was Alan H. Price, Timothy C. Brightbill, and 

Maureen E. Thorson. 

Plaintiffs Severstal Export GmbH and PAO Severstal (together, “Severstal”) 

requested that the U.S. Department of Commerce (“Commerce”) conduct an 

administrative review of its entries of subject merchandise covered by the antidumping 

duty order on hot-rolled steel from the Russian Federation. In the review Commerce 
Court No. 17-00209 Page 2 

assigned Severstal as total adverse facts available (“AFA”) the highest petition margin 

from the original investigation, 184.56 percent. Certain Hot-Rolled Flat-Rolled CarbonQuality Steel Products from the Russian Federation, 82 Fed. Reg. 31,559 (Dep’t of 

Commerce July 7, 2017) (final admin. review) (“Final Results”), and accompanying Issues 

and Decision Memorandum (“Decision Memorandum”). Severstal challenges 

Commerce’s assignment of the total AFA rate, arguing that Commerce wrongfully 

(1) denied an extension request and (2) rejected its revised databases, applied facts 

otherwise available, and used total AFA with an adverse inference.1 See Rule 56.2 Mem. 

Supp. Mot. J. Agency R. of Pls. Severstal Export GmbH and Pao Severstal, ECF No. 24-

1 (“Severstal Br.”); see also Def.’s Resp. to Pls.’ Rule 56.2 Mot. J. Agency R., ECF No. 29 

(“Def.’s Br.”); Def.-Int. Nucor Corp.’s Resp. Br., ECF No. 30; Severstal’s Reply Br., ECF 

No. 32 (“Severstal Reply”). 

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

1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012),2 and 28 U.S.C. § 1581(c) 

(2012). 

I. Standard of Review 

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

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



1 Severstal withdrew another argument about the total AFA rate at oral argument. 

2 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions 

of Title 19 of the U.S. Code, 2012 edition. 
Court No. 17-00209 Page 3 

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

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

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

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

evidence has been described as “such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” DuPont Teijin Films USA v. United States, 

407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 

197, 229 (1938)). Substantial evidence has also been described as “something less than 

the weight of the evidence, and the possibility of drawing two inconsistent conclusions 

from the evidence does not prevent an administrative agency’s finding from being 

supported by substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 

(1966). Fundamentally, though, “substantial evidence” is best understood as a word 

formula connoting reasonableness review. 3 Charles H. Koch, Jr., Administrative Law and 

Practice § 9.24[1] (3d ed. 2019). Therefore, when addressing a substantial evidence issue 

raised by a party, the court analyzes whether the challenged agency action “was 

reasonable given the circumstances presented by the whole record.” 8A West’s Fed. 

Forms, National Courts § 3.6 (5th ed. 2018). 

Separately, the two-step framework provided in Chevron, U.S.A., Inc. v. Natural 

Res. Def. Council, Inc., 467 U.S. 837, 842–45 (1984) governs judicial review of 

Commerce's interpretation of the antidumping statute. See United States v. Eurodif S.A., 

555 U.S. 305, 316 (2009) (Commerce's “interpretation governs in the absence of 
Court No. 17-00209 Page 4 

unambiguous statutory language to the contrary or unreasonable resolution of language 

that is ambiguous.”). 

II. Discussion 

Severstal first argues that Commerce mishandled its April 14 extension request. 

A party typically leads with its strongest argument. One would logically anticipate that 

Severstal would then build upon that argument, contending that Commerce arbitrarily 

failed to provide sufficient time for Severstal to respond to the sections B and D 

questionnaires, which in turn unreasonably disadvantaged Severstal for the balance of 

the proceeding, leading Commerce to apply facts available and an adverse inference. 

Severstal, however, does not make that argument. Severstal instead argues that despite 

being aggrieved by Commerce’s handling of its April 14 extension request, it “timely, 

completely, and accurately provided all information requested, . . . .” Severstal Br. at 17. 

That argument creates an irreconcilable conflict with its first argument about its extension 

request, which is either irrelevant and unnecessary, or renders suspect Severstal’s later 

claim of timeliness, completeness, and accuracy. 

A. Severstal’s April 14 Extension Request 

Commerce addressed in detail Severstal’s argument that the partial grant of its 

April 14 extension request was arbitrary: 

Severstal argues that the Department acted unlawfully and contrary 

to its longstanding practice by initially rejecting Severstal’s third extension 

request, and then subsequently granting an additional extension of only two 

days. Severstal also states that it had only two days to complete its 

responses to sections B and D of the Department’s antidumping duty 

questionnaire, as it did not have time prior to the final two-day extension to 
Court No. 17-00209 Page 5 

respond to the Department’s questionnaire due to the need to prepare for 

verification on other antidumping duty cases. We disagree. The 

Department’s antidumping duty questionnaire was issued February 19, 

2016. The questionnaire provided Severstal a deadline of March 30, 2016, 

to respond to sections B and D. Severstal requested two extensions, which 

the Department granted in part, which moved the deadline to April 18, 2016. 

Thus, Severstal initially received a total of 54 days to submit complete 

section B-D responses. After initially rejecting Severstal’s April 14, 2016, 

third extension request for an additional 14 days, the Department ultimately 

granted Severstal an additional two-day extension, until April 20, 2016.

Therefore, Severstal was, in total, given 56 days to respond to sections B 

and D of the Department’s antidumping duty questionnaire. Severstal stated 

that it “tr[ied] to prepare and file complete section B and D questionnaires 

in less than two days,” which suggests that Severstal did not use the prior 

54 days of time to prepare these sections of the questionnaire. As Severstal 

itself has stated, it has been involved in other antidumping and 

countervailing duty proceedings before the Department. The Department 

notes that Severstal, an experienced respondent familiar with the 

Department’s procedures, self-requested this administrative review on 

December 30, 2015, less two months prior to the initial questionnaire being 

issued. Thus, in self-requesting the administrative review, Severstal 

understood the time and resource commitment it was making with 

overlapping proceedings. 

Decision Memorandum at 11–12. 

 Severstal argues that Commerce’s “rejection of Severstal’s extension request and 

granting only a partial two-day extension was unsupported by substantial evidence, 

arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law.” 

Severstal’s Br. at 8. The court does not agree. Commerce highlighted Severstal’s 

admission that it left itself only two days to prepare a section B and D response. The 

questionnaire instructions state that the original deadlines apply unless extended in 

writing by Commerce. Severstal assumed otherwise. That assumption and 

accompanying laxity in preparing its questionnaire responses place Severstal in a difficult 
Court No. 17-00209 Page 6 

position, further compounded by Severstal attempting to mislead the court about the facts 

on the record. Severstal misrepresents that the “initial due date” for the questionnaire was 

“April 18, 2016.” Severstal Br. at 4–5. The initial due date was March 30, 2016. Severstal 

ultimately had 56 days to complete the questionnaires, not 2. Rather than address that 

56-day time period, Severstal argues that Commerce’s handling of Severstal’s extension 

request was contrary to long standing practice. Severstal, though, only cites two 

extension requests from non-market economy proceedings for a different product. 

Severstal does not explain how these non-market economy cases are identical factually 

and procedurally to its market economy proceeding thereby mandating similar treatment 

across the proceedings. Severstal also never comes to terms with the 56 days it had to 

complete sections B and D. The court therefore sustains Commerce’s partial grant of 

Severstal’s April 14 extension request. 

B. Revised Database, Facts Available, Adverse Inference 

Pursuant to 19 U.S.C. § 1677e, Commerce follows a two-step process to apply 

facts available with an adverse inference. First, Commerce must use facts otherwise 

available to fill gaps in the record if, among other things, an interested party withholds 

information requested by Commerce, fails to provide such information in the form and 

manner requested, significantly impedes the proceeding, or provides information that 

cannot be verified. 19 U.S.C. § 1677e(a). Second, Commerce may apply an adverse 

inference in selecting among the facts available if an interested party fails to cooperate to 

the best of its ability. 19 U.S.C. § 1677e(b). An interested party fails to cooperate to 
Court No. 17-00209 Page 7 

“the best of its ability” when it “fails to put forth its maximum effort to provide Commerce 

with full and complete answers to all inquiries.” See Nippon Steel Corp. v. United States, 

337 F.3d 1373, 1382 (Fed. Cir. 2003). “While the standard does not require perfection 

and recognizes that mistakes sometimes occur, it does not condone inattentiveness, 

carelessness, or inadequate record keeping.” Id. 

Severstal requested the administrative review, and one would anticipate that 

Severstal would have been prepared for the review. Commerce issued its Initial 

Antidumping (“AD”) Questionnaire that requested that Severstal report all of its U.S. and 

home market sales made during the period of review in corresponding sales databases. 

Initial AD Questionnaire, PD3 8, at B-1, C-1. Severstal submitted its response to section 

B of the Initial AD Questionnaire on April 21, 2016. Severstal’s Section B Questionnaire 

Response (Apr. 21, 2016) (Section B Response) PD 37, CD 28–44. In its section B 

response, Severstal did not include a substantial number and volume of sales in its home 

market sales database, Decision Memorandum at 8, despite Severstal’s section B 

narrative response that it had reported downstream sales between its affiliate, Severstal 

Distribution, and unaffiliated customers. Decision Memorandum at 8; Section B 

Response, PD 37, CD 28, at B-6. The home market sales database accompanying the 

section B response did not contain the downstream sales. Decision Memorandum at 8; 



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

in ECF No. 19-2, unless otherwise noted. Likewise, “CD” refers to a document contained 

in the confidential administrative record, which is found in ECF No. 19-3, unless otherwise 

noted. 
Court No. 17-00209 Page 8 

Section B Response at Exhibit B-1, CD 32. Commerce explained that it discovered the 

discrepancies when comparing Severstal’s reported home market sales in its section B 

response with the reported quantity of home market sales in Severstal’s quantity and 

value chart in its response to section A of the Initial AD Questionnaire. Decision 

Memorandum at 8, n.24; Section B Response at Exhibit B-1, CD 32; Severstal’s Section 

A Questionnaire Response (Mar. 14, 2016) at Exhibit A-1, PD 14, CD 2. 

To address the discrepancies, Commerce issued a supplemental questionnaire on 

August 3, 2016. Second Supplemental Questionnaire for the Section A-C Questionnaire 

Responses of Severstal (Aug. 3, 2016) (Second Supplemental Questionnaire) PD 61, 

CD 95. Specifically, Commerce requested that Severstal “[r]econcile the quantity and 

value of sales to affiliated parties reported in Exhibit A-1 of the [section A questionnaire 

response] to the home market sales database of the [section B questionnaire response].” 

Second Supplemental Questionnaire, PD 61, CD 95, at 7. Furthermore, Commerce 

informed Severstal that its home market sales database did not include individual 

columns for the product characteristics that make up the CONNUM4 and instructed it to 

“add a column for each product characteristic” and “report each sale’s respective product 

characteristic coded in the home market sales database of the [section B questionnaire 

response].” Id. at 8. As Commerce explained in the Decision Memorandum, “[i]t is 

standard practice for respondents to include these columns in the sales databases,” and 



4 CONNUM refers to control numbers that identify unique product characteristics, which 

establish the model matching criteria for making a proper comparison between U.S. and 

home market sales. 
Court No. 17-00209 Page 9 

Severstal did report these individual columns for the U.S. sales database, but not for the 

home market sales database. Decision Memorandum at 9; compare Section B Response 

at Exhibit B-1, CD 32, with Severstal’s Section C Questionnaire Response (Apr. 18, 2016) 

at Exhibit C-2, CD 21. To address this deficiency, Commerce issued a supplemental 

questionnaire to provide Severstal an opportunity to revise its home market sales 

database “to report these standard columns.” Decision Memorandum at 9. 

Severstal responded to section B of the Second Supplemental Questionnaire on 

September 6, 2016. See Severstal’s Section B Supplemental Questionnaire Response 

(Sept. 6, 2016) (“Second Supplemental Section B Response”) PD 74, CD 107. Severstal 

provided updated exhibits to reconcile its quantity and value chart in its original section A 

questionnaire response and its original home market sales database and claimed that the 

“apparent discrepancies ha[d] been removed.” Second Supplemental Section B 

Response at 6, Exhibit 2S-16, Exhibit 2S-17, CD 107, 114, 117 & 119. Severstal also 

stated that the home market sales database had been updated to include the individual 

columns that make up the CONNUM. Id. at 7, Exhibit 2S-17, CD 107, 117 & 119. 

Severstal failed to inform Commerce that it had made additional, unrequested changes 

by changing all CONNUMs in the home market sales databases. Decision Memorandum 

at 9. Severstal also made similar unrequested changes to the U.S. sales database. Id. As 

a result, Commerce concluded that Severstal’s revised home market and U.S. sales 

databases contained unsolicited factual information that Commerce rejected pursuant to 

19 C.F.R. § 351.302(d)(1)(ii) and (2). Id. 
Court No. 17-00209 Page 10 

Severstal argues as a factual matter that the information Commerce rejected was 

not unsolicited, but merely corrected previously solicited and submitted information. 

Severstal Br. at 9–13. Problematically for Severstal, it chose a curious path to correct 

inaccuracies within its prior factual submissions. The record is clear that Severstal did 

more than was asked in Commerce’s supplemental questionnaire, seeking to cram those 

corrections into its response, all without a detailed explanation identifying exactly what it 

was correcting from its prior submissions, and why the corrections were necessary. 

A more transparent approach would have been to file the responsive supplemental 

questionnaire without the unrequested corrections and separately file a transparent 

correction of its prior factual submission containing “a written explanation identifying the 

information which is already on the record that the factual information seeks to . . . correct, 

including the name of the interested party that submitted the information and the date on 

which the information was submitted.” 19 C.F.R. § 351.301(b)(2). 

Without that straightforward, transparent approach to correcting Severstal’s 

information, Commerce reasonably addressed the opacity Severstal created. Defendant 

explains that Severstal “attempted to make broad, unsolicited changes to its home and 

U.S. sales databases in the guise of responding to Commerce’s supplemental 

questionnaire seeking information about home market downstream sales and information 

on home market sales product characteristics.” Def’s Br. at 9. Defendant persuasively 

notes that when Commerce requested that Severstal, in its home market database, 

“add a column for each product characteristic” and “report each sale’s respective product 
Court No. 17-00209 Page 11 

characteristic coded in the home market sales database of the [section B questionnaire 

response],” Commerce intended for Severstal to conform its home market database to its 

U.S. database. Commerce did not request that Severstal change the product 

characteristics and CONNUMs. Def’s Br. at 13 (citing Second Supplemental 

Questionnaire, PD 61, CD 95, at 8). 

Severstal also challenges Commerce’s application of facts available and an 

adverse inference. Severstal Br. at 13–20. Commerce noted its authority under 

§ 1677e(a)(2)(B) to use facts available when an interested party fails to provide 

information “in the form and manner requested,” Decision Memorandum at 6–7, and 

explained that Commerce “appropriately applied AFA, because Severstal failed to provide 

necessary information in the manner and form requested by the Department . . . .” Id. 

at 7. In its argument, Severstal omits any reference to Commerce’s authority to use facts 

available when a party like Severstal fails to provide information in the form and manner 

requested. See Severstal Br. at 13–14, 15 (referencing section 1677e(a)(2) but omitting 

the requirement that parties submit information in the form and manner requested); 

see also Severstal Reply Br. at 4. This is unfortunate because it means Severstal’s 

argument is unresponsive to Commerce’s determination. Commerce reasonably 

explained its application of facts otherwise available and an adverse inference against 

Severstal. Decision Memorandum at 6–10. The court simply adds that it is difficult for 

Severstal to claim in good faith that it acted to the best of its ability when it acknowledged 

before Commerce that despite having 56 days to file its responses, Severstal “tried to 
Court No. 17-00209 Page 12 

prepare and file complete section B and D questionnaires in less than two days,” Id. at 12 

(quoting Severstal’s administrative case brief). 

Severstal also argues that, pursuant to 19 U.S.C. § 1677m(d), Commerce had to 

first issue a supplemental questionnaire for section D (relating to costs) before resorting 

to facts available. Severstal Br. at 20–23. Defendant persuasively counters that 

Commerce identified a problem with the sales databases, not the cost databases. 

Commerce relied on Severstal’s admission that the original sales databases were 

incorrect to determine that they were incomplete and unreliable. Decision Memorandum 

at 10. Once Commerce made that determination, it did not have to embark on a fool’s 

errand regarding the cost databases. Id. (“Had Severstal provided accurate and reliable 

sales databases, . . . the section D cost database would have been compatible with the 

sales databases and would have allowed us to run a margin program.”). Commerce 

therefore properly determined it was not required to further modify its section D cost 

database prior to applying facts otherwise available. Id. at 8. 

 
Court No. 17-00209 Page 13 

Conclusion

 For the foregoing reasons, the court sustains the Final Results. The court will enter 

judgment accordingly. 

 /s/ Leo M. Gordon 

 Judge Leo M. Gordon 

Dated: March 27, 2019 

 New York, New York