Corus Staal Bv v. U.S. Dept. of Commerce

• Citation: 259 F.Supp.2d 1253
• Decision Date: 07 March 2003
• Docket Number: Slip Op. 03-25. No. 02-00003.
• Parties: CORUS STAAL BV, and Corus Steel USA Inc. Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE Defendants, and National Steel Corp., Bethlehem Steel Corp., and United States Steel Corp., Defendant-Intervenors.
• Court: U.S. Court of International Trade

259 F.Supp.2d 1253

CORUS STAAL BV, and Corus Steel USA Inc. Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE Defendants, and National Steel Corp., Bethlehem Steel Corp., and United States Steel Corp., Defendant-Intervenors.

Slip Op. 03-25. No. 02-00003.

United States Court of International Trade.

March 7, 2003.

COPYRIGHT MATERIAL OMITTED

Steptoe & Johnson LLP, Washington, DC (Richard 0. Cunningham, Joel D. Kaufman, Alice A Kipel, and Carrie A. Rhoads) for plaintiffs.

Robert D. MeCallum, Jr., Assistant Attorney General, David M. Cohen, Director, Lucius B. Lau, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Paul D. Kovac), Washington, DC, for defendant.

Skadden, Arps, Slate, Meagher, & Flom LLP (Robert E. Lighthizer, John J. Mangan, James C. Hecht) for defendant-intervenors Bethlehem Steel Corporation, National Steel Corporation, and United States Steel Corporation.

OPINION

RESTANI, Judge.

This consolidated matter is before the court on cross-motions for judgment on the agency record, pursuant to USCIT Rule 56.2. Corus Staal BV and Corus Steel USA Inc. (collectively "Corus") and Bethlehem Steel Corporation, National Steel Corporation, and United States Steel Corporation (collectively the "petitioners") separately challenge certain aspects of the final determination of the United States Department of Commerce ("Commerce") in Certain Hot-Rolled Steel Flat Products from the Netherlands, 66 Fed.Reg. 50,408 (Dep't Commerce Oct. 3, 2001), as amended by 66 Fed Reg. 55,637 (Dep't Commerce Nov. 2, 2001) ("Final Determination"). In their motion, the petitioners challenge Commerce's decision to reclassify certain Corus sales as export price. In its motion, Corus argues that (1) Commerce's "zeroing" methodology is contrary to law; (2) Commerce erred in determining that Laura Metaal BV was affiliated with Corus; (3) Commerce improperly considered certain non-prime sales; (4) Commerce erred in denying Corus a level of trade adjustment for certain affiliated sales; and (5) Commerce failed to properly instructed the United States Customs Service ("Customs") to cease collection of provision measures after six months.

JURISDICTION & STANDARD OF REVIEW

The court has jurisdiction over this antidumping duty proceeding pursuant to 28 U.S.C. § 1581(c) (2000). The court will uphold Commerce's determination in an antidumping investigation 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)(i).

FACTUAL & PROCEDURAL BACKGROUND

On December 4, 2000, Commerce initiated antidumping investigations to determine whether imports of hot-rolled carbon steel flat products from various countries, including the Netherlands, were being sold in the United States at less-than-fair-value ("LTFV"). See Notice of Initiation of Antidumping Duty Investigations: Certain Hot-Rolled Carbon Steel Flat Products From Argentina, India, Indonesia, Kazakhstan, the Netherlands, the People's Republic of China, Romania, South Africa, Taiwan, and Ukraine, 65 Fed.Reg. 77,568 (Dep't of Commerce Dec. 12, 2000). Corus Staal BV ("CSBV") manufactures subject hot-rolled steel in the Netherlands and was identified as the only producer of hotrolled steel from the Netherlands. Id. at 77,573. Corus Steel USA Inc. ("CSUSA") is affiliated with CSBV and, among other things, imports the subject merchandise. Both were respondents in the underlying investigation.

On May 3, 2001, Commerce published an affirmative preliminary determination of sales at less than fair vaule ("LTFV") with respect to hot-rolled steel from the Netherlands. Notice of Preliminary Determination of Sales at Less Than Fair Value; Certain Hot-Rolled Carbon Steel Flat Products From the Netherlands, 66 Fed. Reg. 22,146 (Dep't of Commerce May 3, 2001) ("Preliminary Determination"). The Preliminary Determination ordered the suspension of liquidation of all entries of hot-rolled steel from the Netherlands and calculated a weighted-average dumping margin for Corus. Id. at 22,151.

On May 22, 2001, Corus requested a postponement of the final determination pursuant to 19 C.F.R. § 351.210(b)(2)(h), as permitted by 19 U.S.C. § 1673d(a)(2),¹ including an extension of the provisional measures from a four month period to not more than six months. See Corus' May 22, 2001 Letter to Commerce. On June 4, 2001, Commerce granted the request and postponed the final determination until no later than September 15, 2001, and the suspension of liquidation until October 30, 2001. See Postponement of Final Determination for Antidumping Duty Investigation: Certain Hot-Rolled Carbon Steel Flat Products From the Netherlands, 66 Fed.Reg. 32,600 (Dep't of Commerce June 15, 2001).

Due to the events of September 11, Commerce issued its affirmative final determination on September 21, 2001, finding that hot-rolled steel from the Netherlands was being sold, or likely being sold, in the United States at LTFV. Final Determination, 66 Fed.Reg. at 50,408 (Dep't Commerce Sept. 21, 2001), amended 66 Fed. Reg. at 55,637 (November 2, 2001) (revising the weighted average dumping margin for Corus). In the amended Final Determination, Commerce directed Customs to continue suspending liquidation of subject imports "until further notice." Id. at 55,639.² Commerce published its final antidumping order on November 29, 2001. Antidumping Duty Order: Certain Hotrolled Carbon Steel Flat Products From the Netherlands, 66 Fed.Reg. 59,965 (Dep't Commerce Nov. 29, 2001). Corus and the petitioners separately appealed the Final Determination.³ On June 20, 2002, the court consolidated petitioners' appeal (No. 02-00028) with Corus' appeal (No. 02-00003). These motions followed.

DISCUSSION

I. The Petitioners' Motion

As an initial matter, Commerce and the petitioners are in agreement that a remand is necessary to address the United States price treatment of tolled sales (sales to another party for further processing). Corus opposes the remand. In SKF USA, Inc. v. United States, 254 F.3d 1022, 1028 (Fed.Cir.2001), the court addressed the issue of voluntary remand which is requested by the governmente when the original determination denying a favorable adjustment to a respondent was not required by statute. The court noted that if "bad faith" is not at issue, remand is appropriate to consider a different statutory interpretation. See id. at 1028-29. Whether or not new adjustments favorable to the petitioners occupy the same position as those affecting a respondent, remand must be on account of appropriate reasons.⁴

The court notes that the Federal Circuit did not discuss the line of cases indicating that mere policy changes should not be allowed to alter final agency determinations. See, e.g., American Trucking Ass'n v. Frisco Transportation Co., 358 U.S. 133, 79 S.Ct. 170, 3 L.Ed.2d 172 (1958) (finding that the Interstate Commerce Commission cannot, without specific statutory authority, reconsider license and certificate decisions because of policy changes); Upjohn Co. v. Pennsylvania Railroad Co., 381 F.2d 4, 5 (6th Cir.1967) (finding that granting a voluntary remand request based merely upon a change in policy "would result in chaos and uncertainty of action for those who must rely on its findings."); Chapman v. El Paso Natural Gas Co., 204 F.2d 46, 53-54 (D.C.Cir. 1953) ("[A] decision may not be repudiated for the sole purpose of applying some quirk or change in administrative policy."). In any case, concerns for finality do exist and the agency must state its reasons for requesting remand. Further, if only to guard against the "bad faith" requests of concern to the court in SKF, the court must be apprised of the reason for the remand request, whether it be on account of error or merely a change in policy. Commerce's brief does not provide any reason, policy or otherwise, for requesting a remand, although the domestic party makes clear that it believes error occurred. Commerce merely requests remand so that it can "reconsider its decision." This is insufficient to support a voluntary remand.

Commerce's failure, however, does not foreclose completely the petitioners' appeal. The petitioners may demonstrate error. The sole issue raised by the petitioners is whether Commerce properly classified Corus' tolled sales as export price ("EP") transactions in the Final Detemination)⁵ Some of Corus' U.S. sales involved tolling operations performed in the United States. The petitioners argue that these sales were actually made in the United States by CSUSA, (CSBV's affiliated importer) and, therefore, should have been classified as constructed export price ("CEP") transactions.⁶ The petitioners' challenge stems from a reversal by Commerce on this issue in the course of its investigation.

In the Preliminary Determination, Commerce classified all of Corus' U.S. sales, including tolled sales, as CEP transactions, finding that sales were made in the United States. Preliminary Determination, 66 Fed.Reg. at 22,148. Although Corus did not further challenge this finding, Commerce later reclassified tolled U.S. sales as export price ("EP") transactions following verification. See Final Determination, 66 Fed.Reg. at 55,637-39. "Concerning the tolled merchandise, we verified that the sales in question were between Corus Staal and the U.S. Customer. The record does not show that Corus USA was involved in these transactions." Issues and Decision Memorandum at 15-16, Comment 10.

In AK Steel Corp. v. United States, 226 F.3d 1361 (Fed.Cir.2000), the court held that, in determining whether sales are EP or CEP transactions, the relevant inquiry is whether the merchandise was sold in the United States. Id. at 1371. In AK Steel, the court found that, under the antidumping statute, merchandise is "sold" when there is "both a transfer of ownership and consideration" and that the "seller" is the "party who transfers property in the contract of sale."...