Novosteel Sa v. U.S.

• Decision Date: 18 January 2001
• Docket Number: Court No. 99-05-00299.,Slip Op. 01-2.
• Citation: 128 F.Supp.2d 720
• Parties: NOVOSTEEL SA, Plaintiff, v. UNITED STATES, Defendant, and Bethlehem Steel Corporation; U.S. Steel Group, a Unit of USX Corporation Defendant-Intervenors.
• Court: U.S. Court of International Trade

128 F.Supp.2d 720

NOVOSTEEL SA, Plaintiff, v. UNITED STATES, Defendant and Bethlehem Steel Corporation; U.S. Steel Group, a Unit of USX Corporation Defendant-Intervenors.

Slip Op. 01-2.

Court No. 99-05-00299.

United States Court of International Trade.

January 18, 2001.

Edmund Maciorowski, P.C. (Edmund Maciorowski, Pamela L. St. Peter), Bloomfield Hills, Michigan, for Plaintiff.

David W. Ogden, Assistant Attorney General, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Velta A. Melnbrencis, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Bernd G. Janzen, Attorney, Office of the Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC, for Defendant, of Counsel.

Dewey Ballantine LLP (Michael H. Stein, Bradford L. Ward, Michael Castellano, Joon Y. (Peter) Kim), Washington, D.C., for Defendant-Intervenors.

OPINION

CARMAN, Chief Judge.

Plaintiff, Novosteel SA (Novosteel), an importer of steel profile slabs produced in Germany by Reiner Brach GmbH & Co. KG (Reiner Brach), challenges an unpublished scope determination issued by the United States Department of Commerce (Commerce) finding Reiner Brach's profile slabs are within the class or kind of merchandise covered by the antidumping and countervailing duty orders on certain cut-to-length carbon steel plate from Germany. See Final Scope Determination Regarding Profile Slabs — Antidumping and Countervailing Duty Orders on Certain Cut-to-Length Carbon Steel Plate from Germany, U.S. Department of Commerce Internal Memorandum from Roland MacDonald to Joseph Spetrini (May 18, 1999) (Final Scope Determination). Plaintiff moves for judgment upon the agency record pursuant to U.S. CIT R. 56.2, contending Commerce's Final Scope Determination is not supported by substantial evidence on the record and is otherwise not in accordance with law.

Defendant and Defendant-Intervenors oppose Plaintiff's motion, contending Commerce's Final Scope Determination should be sustained. This Court denies Plaintiff's motion for judgment upon the agency record. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c) (1994).

BACKGROUND

On August 17 and August 19, 1993, respectively, the Department of Commerce published countervailing and antidumping duty orders on cut-to-length carbon steel plate from Germany. See Countervailing Duty Orders and Amendment to Final Affirmative Countervailing Duty Determinations: Certain Steel Products from Germany, 58 Fed.Reg. 43,756 (Aug. 17, 1993) (CVD Order), and Antidumping Duty Orders and Amendments to Final Determinations of Sales at Less Than Fair Value: Certain Hot-Rolled Carbon Steel Flat Products, Certain Cold-Rolled Carbon Steel Flat Products, Certain Corrosion-Resistant Carbon Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate From Germany, 58 Fed.Reg. 44,170 (Aug. 19, 1993) (AD Order)[collectively "Plate Orders"]. These two orders, in relevant part, defined "certain cut-to-length carbon steel plate" to include:

certain hot-rolled carbon steel flat-rolled products in straight lengths, of rectangular shape, hot rolled, neither clad, plated, nor coated with metal, whether or not painted, varnished, or coated with plastics or other nonmetallic substances, 4.75 millimeters or more in thickness and of a width which exceeds 150 millimeters and measures at least twice the thickness....

CVD Order, 58 Fed.Reg. at 43,758; AD Order, 58 Fed.Reg. at 44,170 (defining the scope by reference to "Appendix I to the Final Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Carbon Steel Flat Products from Argentina (58 FR 37,062, July 9, 1993).").¹ The scope of the Plate Orders also listed various sub-headings within headings 7208, 7210, 7211, and 7212 of the Harmonized Tariff Schedule of the United States (HTSUS), under which the subject merchandise was classifiable.

Novosteel began importing Reiner Brach profile slab from Germany into the United States through its wholly owned subsidiary Barzelex, Inc. (Barzelex) in June, 1994. Prior to importing the goods into the United States, Barzelex obtained a Custom's Ruling Letter classifying Reiner Brach's product under heading 7207, HTSUS, as "semifinished products of iron or non-alloy steel." Ruling Letter 896625: The Tariff Classification of Profiling Slabs from Germany (Customs Service Apr. 21, 1994). From June, 1994, to July 1998, Barzelex imported Reiner Brach profile slabs into the United States under heading 7207. (Plaintiff, Novosteel SA's Motion and Brief in Support of Its Motion Under Rule 56.2 for Judgment Upon the Agency Record (Pl.'s Br.) at 6.) Because heading 7207, HTSUS, was not within the scope of the plate orders, Customs did not require the deposit of estimated antidumping or countervailing duties on the profile slabs at the time of entry. In June, 1998, the import specialists for the Ports of Philadelphia and Cleveland first informed Barzelex that a review of its entries determined the slabs to be within the scope of the Plate Orders. (Id.) The Port of Cleveland import specialist advised Novosteel to file a scope inquiry with the Department of Commerce pursuant to 19 C.F.R. § 351.225 (1998). (Id. at 7.) From August 3, 1998 until February 19, 1999, Novosteel effectuated 14 entries of Reiner Brach profile slab, each of which was rejected by the Customs Service.² (Id. at 12.) No additional entries were made after February 19, 1999.(Id.)

On August 17, 1998, Novosteel initiated a scope inquiry pursuant to 19 C.F.R. § 351.225(c) (1998).³ Commerce issued its preliminary scope determination on March 23, 1999, concluding Reiner Brach profile slab was within the scope of the antidumping and countervailing duty orders on certain cut-to-length carbon steel plate from Germany. See Preliminary Scope Determination Regarding Profile Slabs — Antidumping and Countervailing Duty Orders on Certain Cut-to-Length Carbon Steel Plate from Germany, U.S. Department of Commerce Internal Memorandum from Roland MacDonald to Joseph Spetrini (Mar. 23, 1999) (Preliminary Scope Determination). Following the submission of comments by Novosteel and domestic producers, Commerce issued its Final Scope Determination on May 18, 1999.

In its Final Scope Determination, Commerce determined that "based upon a review of the underlying record — the petition, the Department and ITC determinations, and the orders ... the profile slabs ... are hot-rolled carbon steel products meeting the dimensional characteristics of subject merchandise." Final Scope Determination at 3. However, Commerce was "unable to conclude by reference to the underlying scope descriptions whether these slabs also qualify as flat-rolled⁴ products covered by the orders." Id. Because Commerce could not determine whether Reiner Brach profile slab was within the scope of the Plate Orders based on its review of the petition and other relevant documents, it applied the Diversified Products⁵ criteria. Based upon its review of the physical characteristics, ultimate use, expectations of ultimate purchasers, channels of trade, and manner of advertising and display of Reiner Brach's profile slab, Commerce determined Reiner Brach profile slab is of the same class or kind of merchandise as certain cut-to-length carbon steel plate and, therefore, falls within the scope of the Plate Orders. See Id.

CONTENTIONS OF THE PARTIES

A. Plaintiff

Plaintiff raises two primary arguments in challenging Commerce's Final Scope Determination. First, Plaintiff argues the record established before Commerce unambiguously excludes Reiner Brach profile slabs from the scope of the Plate Orders. Plaintiff contends this should have ended Commerce's inquiry, rendering a Diversified Products analysis superfluous. (Pl.'s Br. at 17.) Plaintiff maintains there is "ample evidence to establish that Reiner Brach slab is not `flat-rolled' as required by the order[s]," and, is, therefore, unambiguously outside the scope of the orders. (Id. at 18.)

Second, Plaintiff asserts Commerce reached a determination that is not supported by substantial evidence on the record in concluding Reiner Brach's profile slab is of the same class or kind of merchandise as flat-rolled cut-to-length carbon steel plate based on its application of the Diversified Products criteria. (Id. at 21.) Plaintiff contends Reiner Brach's profile slab is a "semi-finished" steel product which does not share the same physical characteristics, ultimate use, expectations of ultimate purchasers, channels of trade, or manner of advertising and display as the cut-to-length carbon steel plate that was the subject of the investigations by Commerce and the ITC. (Id.)

B. Defendant

Defendant rejects Plaintiff's contentions and argues this Court should deny Plaintiff's motion for judgment upon the agency record. Defendant asserts Commerce's Final Scope Determination is supported by substantial evidence on the record and is otherwise in accordance with law. Defendant raises two primary arguments in support of this assertion.

First, Defendant argues Commerce properly concluded the definition of cut-to-length carbon steel plate contained in the petition, initial investigations, and determinations of Commerce and the ITC did not definitively resolve whether Reiner Brach's profile slab was within the scope of the Plate Orders. Defendant notes that although "it is undisputed that Reiner Brach's profile slabs are hot-rolled carbon steel products of rectangular shape that meet the dimensional specifications of the plate orders," Commerce found it was unclear "whether Reiner Brach's profile slabs could also be characterized as finished, flat-rolled products." (Defendant's Memorandum in Opposition to Plaintiff's Motion for Judgment Upon the Agency Record (Def.'s Br.) at 19-20.) Defendant contends that based on Commerce's conclusion that the underlying scope...