Ag Der Dillinger Huttenwerke v. U.S.
| Decision Date | 28 February 2002 |
| Docket Number | SLIP OP. 02-25.,Court No. 00-09-00437. |
| Citation | 193 F.Supp.2d 1339 |
| Parties | AG DER DILLINGER HUTTENWERKE, EKO Stahl GmbH, Salzgitter AG Stahl und Technologie, Stahl Werke Bremen GmbH, and Thyssen Krupp Stahl AG, Plaintiffs, v. THE UNITED STATES, Defendant, v. Bethlehem Steel Corporation, and United States Steel LLC Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
DeKieffer & Horgan, Washington, DC (J. Kevin Horgan and Marc E. Montalbine) for plaintiffs.
Robert D. McCallum, Jr., Assistant Attorney General, David M. Cohen, Director, A.David Lafer, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, (John C. Einstman), Boguslawa B. Thoemmes and Edna Boyle-Lewicki, Office of the General Counsel, United States Department of Commerce, for defendant, of counsel.
Dewey Ballantine LLP, Washington, DC (John A. Ragosta and John W. Bohn) for defendant-intervenors.
This matter is before the court on a motion for judgment based upon the agency record pursuant to USCIT Rule 56.2. The motion has been brought by AG der Dillinger Huttenwerke ("Dillinger"), EKO Stahl GmbH, Salzgitter AG Stahl und Technologie, Stahlwerke Bremen GmbH and Thyssen Krupp Stahl AG (collectively "Plaintiffs"), respondents in a countervailing duty ("CVD") investigation.1 See Certain Steel Products from Germany, 58 Fed.Reg. 37,315 (Dep't Comm.1993) (final determ.) [hereinafter "Final Determination"]. At issue is the final determination by the Department of Commerce ("Commerce" or the "Department") pursuant to sunset review under 19 U.S.C. § 1675(c). See Certain Corrosion-Resistant Carbon Steel Flat Products; Cold-Rolled Carbon Steel Flat Products; and Cut-to-Length Carbon Steel Plate Products from Germany, 65 Fed.Reg. 47,407 (Dep't Comm.2000) (final sunset rev.) [hereinafter "Sunset Determination"]. Plaintiffs challenge the Sunset Determination principally on the following grounds: (1) Commerce improperly shifted the burden of proof to Plaintiffs to prove that the benefits under certain programs were not likely to continue; and (2) Commerce erred in not taking into account changes in law that took place subsequent to the initial investigation.
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (1994). The court will uphold Commerce's determination in countervailing duty investigations unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B).
On June 30, 1992, the domestic steel industry, Bethlehem Steel Corporation and United States Steel LLC (collectively "domestic producers" or "petitioners") filed petitions with Commerce alleging that the Government of Germany ("Germany") was providing countervailable subsidies to its steel industry through various subsidy programs. Commerce subsequently conducted a countervailing duty investigation, and on July 9, 1993, issued a final affirmative determination that countervailable benefits had in fact been provided by Germany to its steel industry.2 See Final Determination, 58 Fed.Reg. at 37,315. The period of investigation ("POI") for which subsidies were measured was 1991.
On September 1, 1999, Commerce initiated sunset reviews of the countervailing duty orders on corrosion-resistant and cut-to-length steel products from Germany.3 See Initiation of Five-year ("Sunset") Reviews of Antidumping and Countervailing Duty Orders or Investigations of Carbon Steel Plates and Flat Products, 64 Fed. Reg. 47,767, 47,768 (Dep't Comm.1999); see also Transition Orders; Final Schedule and Grouping of Five-Year Reviews, 63 Fed.Reg. 26,779, 26,786 (Dep't Comm. 1998).4
On September 10, 1999, the domestic producers including Bethlehem Steel Corporation and U.S. Steel Group, a unit of USX Corp. (collectively "Defendant Intervenors"), filed notices of intent to participate in the sunset reviews. See P.R. Docs. 531, 533. The German producers filed notices of intent to participate on September 28, 1999. See P.R. Docs. 552, 553. On September 30, 1999, the Commission of the European Communities and the Government of Germany submitted substantive responses to the notice of initiation. See P.R. Docs. 577-78, 603.5 On October 1, 1999, substantive responses were submitted by the German producers and the domestic producers. See P.R. Docs. 555, 556, 558, 560, Pl.App. Tabs 3, 4. Rebuttals to the substantive responses were filed by the various parties on October 15, 1999. See P.R. Docs. 593-602, 608. Having deemed the responses "adequate," Commerce decided to conduct a "full sunset review" rather than an abbreviated, expedited sunset review based on the facts available. See Sunset Determination at cmt. 1.
On November 9, 1999, the domestic producers filed a submission contesting Commerce's decision to conduct a full sunset review. See P.R. Doc. 632. On March 14, 2000, the German producers filed a submission discussing a pending decision of the WTO dispute settlement panel and a decision issued by the U.S. Court of Appeals for the Federal Circuit, both of which related to Commerce's change-in-ownership methodology. On March 16, 2000, the domestic producers submitted comments in response to the claims made in the German producers' March 14 submission. See P.R. Doc. 723. On March 17, 2000, the German producers filed a submission regarding the allocation period from the German depreciation schedule, which had been used in Steel Wire Rod from Germany, 62 Fed.Reg. 54,990 (Dep't Comm. Oct. 22, 1997) (final determ.) [hereinafter "Steel Wire Rod"].
On March 20, 2000, Commerce issued its preliminary results of the sunset review.6 Certain Corrosion-Resistant Carbon Steel Flat Products; Cold-Rolled Carbon Steel Flat Products; and Cut-to-Length Carbon Steel Products from Germany, 65 Fed. Reg. 16,176 (Dep't Comm. March 27, 2000) (prelim. sunset determ.) [hereinafter "Preliminary Sunset Determination"]. In the Preliminary Sunset Determination, Commerce determined that revocation of the countervailing duty orders would be likely to lead to continuation or recurrence of a countervailable subsidies. Id. Commerce indicated that it relied on rates determined in the original investigation because no administrative review of the orders had been conducted. Id. at § II. Commerce found that grants were made under the Capital Investment Grants ("CIG") program after 1986, producing a benefit stream that would last beyond the end of the sunset review. Id. at § 1.1.
After the preliminary results, counsel for the German producers contacted Commerce to request that the calculation memoranda from the original investigation be made part of the administrative record in the sunset reviews to clarify the issue of whether benefits were given after 1986. On April 13, 2000, counsel for the German producers made this request in writing. See Pl.App. Tab 9. In late April of 2000, the Government of Germany submitted its questionnaire response from the original investigation and verified information from the Steel Wire Rod investigation explaining Germany's regional assistance programs. See Pl.App. Tab 10.
On April 25, 2000, Commerce issued a letter returning the March 11 and March 17, 2000 submissions and striking them from the record, on the ground that it "normally will not accept or consider any additional information from a party after the time for filing rebuttals has expired unless the Secretary requests additional information from a party after determining to proceed to a full sunset review." See P.R. Docs. 742-43, Pl.App. Tab 11 at 1 (citing 19 C.F.R. § 351.218(d)(4)). On April 28, 2000, the domestic producers submitted its response to the German producers' request to place the calculation memoranda on the sunset review record. See P.R. Doc. 763, Pl.App. Tab 12. The response included portions of a questionnaire response of one of the German companies from the original investigation. Id.
On May 2, 2000, counsel for the German producers met with Commerce staff and again requested the inclusion of the calculation memoranda in the administrative record. In May 2000, the Government of Germany and the rest of the interested parties timely submitted case briefs. In early June 2000, all parties timely submitted post-preliminary determination rebuttal briefs, and a hearing was held on June 26, 2000.
On July 11, 2000, Commerce issued a letter striking the portion of the submissions from the record pertaining to "new factual information and/or materials ... submitted in another proceeding." P.R. Doc. 849, Pl.App. Tab 15. In the same letter, Commerce indicated that it decided to keep in the sunset review record "the portion [of the submission] which were parts of the record in the original investigation of the orders, because they were submitted in connection with the original investigation and it is our practice to use information contained [in] the record of the investigation, where appropriate." Id.
On July 27, 2000, Commerce issued the final results pursuant to sunset review. Sunset Determination, 65 Fed.Reg. 47,407. In the Sunset Determination, Commerce determined that revocation of the countervailing duty orders would be likely to lead to continuation or recurrence of countervailable subsidies. Id. at 47,408. Commerce maintained the rates arrived at in the Final Determination for cut-to-length carbon steel products. See Sunset Determination at Background Section. With respect to corrosion-resistant carbon steel flat products, however, Commerce made adjustments to the net subsidy rate for this class of subject merchandise by deducting the subsidy rates attributable to these programs.7
On December 15, 2000, Commerce published notice of the continuation of countervailing duty order. See Certain Carbon Steel Products from Germany, 65 Fed. Reg. 78,469 (Dep't Comm.2000).
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