Bethlehem Steel Corp. v. U.S, SLIP OP. 04-13.

• Decision Date: 17 February 2004
• Docket Number: Court No. 99-08-00525.,SLIP OP. 04-13.
• Citation: 316 F.Supp.2d 1309
• Parties: BETHLEHEM STEEL CORPORATION, U.S. Steel Group, A Unit of USX Corporation, Ispat Inland Inc., LTV Steel Company, Inc. and National Steel Corporation, Plaintiffs, v. UNITED STATES, Defendant, and Usinas SiderUrgicas de Minas Gerais S/A, Companhia Siderurgica Paulista and Companhia Siderurgica Nacional, Defendant-Intervenors.
• Court: U.S. Court of International Trade

316 F.Supp.2d 1309

BETHLEHEM STEEL CORPORATION, U.S. Steel Group, A Unit of USX Corporation, Ispat Inland Inc., LTV Steel Company, Inc. and National Steel Corporation, Plaintiffs, v. UNITED STATES, Defendant, and Usinas SiderUrgicas de Minas Gerais S/A, Companhia Siderurgica Paulista and Companhia Siderurgica Nacional, Defendant-Intervenors.

SLIP OP. 04-13.

Court No. 99-08-00525.

United States Court of International Trade.

February 17, 2004.

Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC (Robert E. Lighthizer, John J. Mangan, and Jeffrey D. Gerrish) and Dewey Ballantine LLP (Alan Wm. Wolff and Michael H. Stein), for Plaintiffs.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Lucius B. Lau); Linda S. Chang, Senior Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for Defendant, of counsel.

Willkie Farr & Gallagher, Washington, DC (Christopher A. Dunn, Matthew R. Nicely, and Robert E. DeFrancesco), for Defendant-Intervenors.

OPINION

RIDGWAY, Judge.

In the immortal words of Yogi Berra, "It's deja vu all over again."¹

Bethlehem II — the first opinion in this action — remanded to the U.S. Department of Commerce ("Commerce") the July 1999 agreement between that agency and the Government of Brazil,² which suspended at the eleventh hour the investigation into alleged countervailable subsidies received from the Brazilian Government by three Brazilian steel exporters ("Brazilian Exporters").³ See Bethlehem Steel Corp. v. United States, 25 CIT ___, 159 F.Supp.2d 730 (2001) ("Bethlehem II").⁴ Familiarity with that opinion is presumed.

Bethlehem II found that the Suspension Agreement itself rebutted any presumption that the agency had considered the comments of the plaintiff domestic steel producers ("Domestic Producers"),⁵ as required by the applicable statute. Specifically, the Agreement not only failed to incorporate any of the substantive revisions sought in the Domestic Producers' comments on the proposed agreement; it also failed to correct the numerous drafting errors and inaccuracies that their comments identified. Based on "Commerce's failure to comply with the notice, comment and consultation requirements of the suspension agreement statute," the remand was intended to permit the agency to "reconsider its Suspension Determination, giving due consideration to all of the petitioners' comments — the substantive ones as well as those identifying drafting or clerical errors." 25 CIT at ___, 159 F.Supp.2d at 743.

Now before the Court is Commerce's Amended Final Redetermination Pursuant to Court Remand ("Amended Final Remand Results" or "Amended Remand Determination"). Commerce has there steadfastly reaffirmed its defense of the Suspension Agreement and, indeed, asserts boldly that "the only changes made ... should be the corrections of the [specified] clerical errors." Id. at 8. See also id. at 38.

The Brazilian Exporters join Defendant, the United States ("the Government") in urging dismissal of this action, arguing that the Amended Final Remand Results are supported by substantial evidence and otherwise in accordance with law. See Defendant's Response in Opposition to Plaintiffs' Comments on the Department of Commerce's Amended Final Remand Results ("Def.'s Brief") at 1-2; Defendant-Intervenors' Comments on the Department of Commerce's Amended Final Remand Determination ("Def.-Ints.' Brief") at 1.

In contrast, the Domestic Producers contend that "[d]espite being given not one, but two opportunities on remand, [Commerce] still has failed to meet any of the stringent requirements set forth in the [suspension agreement] statute...." Plaintiffs' Comments on the Department of Commerce's Amended Final Remand Results ("Pls.' Brief") at 1-2. As such, the Domestic Producers assert that Commerce's Amended Final Remand Results, as well as its underlying suspension determination, are not supported by substantial evidence on the record and are otherwise not in accordance with law.

For the reasons set forth below, this action must be remanded yet again to the Department of Commerce.

I. Background

In late September 1998, the Domestic Producers, among others, petitioned Commerce and the International Trade Commission ("ITC"), seeking the imposition of countervailing duties on certain steel products from Brazil. In keeping with the tight statutory deadlines established by the countervailing duty laws, the ITC issued its preliminary material injury determination one month later. Commerce's preliminary determination issued in mid-February 1999, finding that countervailable subsidies were indeed being provided to the Brazilian Exporters.

On June 6, 1999, barely one month prior to the deadline for its final determination, Commerce and the Brazilian Government initialed a proposed agreement to suspend the countervailing duty investigation. Because the relevant statute requires that a suspension agreement be completed no later than the date of Commerce's final determination, and because the statute requires Commerce to notify and consult with petitioners at least 30 days in advance, June 6, 1999, was the last possible day on which Commerce could announce its intention to suspend the investigation. Commerce provided a copy of the proposed agreement to the Domestic Producers, and required that any comments be submitted by June 28, 1999.

The Domestic Producers filed a timely, and lengthy submission detailing numerous substantive objections to the proposed suspension agreement. Nevertheless, a few days later, on July 6, 1999 — the deadline for issuance of Commerce's final determination in the countervailing duty investigation — the agency and the Brazilian Government executed the Suspension Agreement. Commerce's final affirmative determination in the underlying investigation — issued that same day — found net subsidy rates for the Brazilian Exporters ranging between 6.35% and 9.67%.⁶ However, as a result of the Suspension Agreement, no countervailing duty order has ever issued.

This challenge to the Suspension Agreement ensued, resulting in Bethlehem II and a remand to Commerce, "to enable [the agency] to comply with the notice, comment and consultation requirements of the suspension agreement statute; to allow it to articulate its interpretation of the monitoring provisions of the statute; to afford it the opportunity to articulate its interpretation of certain provisions of the `extraordinary circumstances' requirement of the statute ...; to allow it to articulate its interpretation of the public interest requirement; and to permit it to reconsider the Suspension Agreement and its underlying Suspension Determination in that light." See Bethlehem II, 159 F.Supp.2d at 762.

In lieu of filing the remand results in accordance with the timetable established in the order accompanying Bethlehem II, Commerce sought and was granted an extension of time of more than 60 days to, inter alia,"solicit and consider comments from the interested parties." See Defendant's Consent Motion for Extension of Time in which Commerce may File its Remand Results (Sept. 10, 2001) at 2. Commerce nevertheless did not release its draft remand results to the Domestic Producers until 6:00 p.m. on November 13, 2001 — under cover of a letter requiring that any comments be filed no later than close of business two days thereafter, and emphasizing that "no extensions can be granted." See Letter from Commerce to Skadden, Arps (Nov. 13, 2001), P.R. Doc. No. 265. Thus, more than 100 days elapsed before Commerce released its draft remand results. Moreover, during that period, the agency consulted with other entities, but engaged in no consultations with the Domestic Producers.⁷ Yet, once it released its draft remand results, Commerce accorded the Domestic Producers less than 48 hours to analyze the draft results, research and draft comments, and file those comments.

When the Domestic Producers objected strenuously to Commerce's procedure, the agency filed its "final remand results" with the Court but sought, and was granted, a second remand to solicit comments and to consult with the parties. See Order (Dec. 10, 2001) (granting Defendant's Consent Motion for Remand). Even after that second remand, however, Commerce did not initiate consultations with the Domestic Producers.

The Domestic Producers submitted comments on Commerce's final remand results on January 11, 2002. See Plaintiffs' Comments on the Department of Commerce's Amended Final Remand Results, P.R. Doc. No. 279 at 5. Still, Commerce did not meet with the Domestic Producers until February 19, 2002 — more than a month after the Domestic Producers had filed their comments on the "final remand results," three months after those "final remand results" were filed with the Court, more than three months after Commerce's draft remand results were released, more than six months after Bethlehem II remanded the case to the agency, and more than two and a half years after Commerce signed the Suspension Agreement.

In any event, as discussed below, the Domestic Producers contend that Commerce's February 2002 consultations were perfunctory and pro forma, at best. The Final Amended Remand Results here at issue were filed approximately two weeks thereafter.

II. Analysis

As Bethlehem II explained, there are essentially two distinct types of suspension agreements in countervailing duty cases — so-called "subsection (b) agreements" and "subsection (c) agreements." See generally Bethlehem II, 25 CIT at ___, 159 F.Supp.2d at 734-35. Subsection (b) agreements eliminate or offset completely a countervailable subsidy, or cease exports of the subject merchandise. 19 U.S.C. § 1671c(b). In contrast, subsection (c) agreements — like the Suspension Agreement at issue here — do not cease exports; nor do they completely eliminate or offset countervailable subsidies. Rather, t...