Oregon Steel Mills Inc. v. U.S. (Dept. of Commerce and Intern. Trade Admin.)

Decision Date23 November 1988
Docket NumberNos. 88-1242,88-1243,s. 88-1242
Citation862 F.2d 1541
PartiesOREGON STEEL MILLS INC., Plaintiff-Appellee, v. UNITED STATES (DEPARTMENT OF COMMERCE AND INTERNATIONAL TRADE ADMINISTRATION) and Pohang Iron & Steel Co., Ltd., Defendants-Appellants.
CourtU.S. Court of Appeals — Federal Circuit

John H. Cutler, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., argued for plaintiff-appellee. With him on the brief was Esta L. Brand.

Elizabeth C. Seastrum, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for defendants-appellants ITA. With her on the brief were John R. Bolton, Asst. Atty. Gen., and David M. Cohen, Director. Also on the brief were Robert H. Brumley, Deputy General Counsel, M. Jean Anderson, Chief Counsel for Intern. Trade, Lisa B. Koteen and Tina M. Stikas, Atty.-Advisers, Office of the Deputy Chief, Counsel for Import Admin., U.S. Dept. of Commerce, of counsel.

Donald B. Cameron, Jr., Mudge Rose Guthrie Alexander & Ferdon, Washington, D.C., argued for defendants-appellants Pohang Iron. With him on the brief was Julie C. Mendoza.

Before NIES, BISSELL and ARCHER, Circuit Judges.

NIES, Circuit Judge.

This appeal is from the final judgment and order of the Court of International Trade in Gilmore Steel Corp. v. United States, 672 F.Supp. 1459 (Ct. Int'l Trade 1987), vacated in part, No. 86-05-00606 (Ct. Int'l Trade Order Dec. 24, 1987) (Tsoucalas, J.), which required the Department of Commerce, International Trade Administration (ITA), to reinstate an antidumping duty order imposed on Korean carbon steel plate imports. The facts underlying this proceeding are set out in detail in the opinion of the Court of International Trade, familiarity with which is presumed. Briefly, the ITA issued an antidumping order, pursuant to 19 U.S.C. Sec. 1673-1673g (1982 & Supp. IV 1986), covering steel plate from Korea. See 49 Fed.Reg. 33,298 (Aug. 22, 1984). Thereafter, the governments of the United States and Korea entered into a Voluntary Restraint Agreement (VRA) pursuant to the Steel Import Stabilization Act of 1984 (SISA), Pub.L. No. 98-573, 98 Stat. 2948, reprinted in 19 U.S.C. Sec. 2253 note (1982 & Supp. IV 1986), under which Korea agreed, inter alia, to quantitative restrictions on imports for these goods conditioned upon revocation of the subject antidumping order. To effectuate that condition precedent, the ITA, in effect, surveyed the domestic industry. Six of the seven producers of carbon steel plate in the United States opted in favor of the VRA over antidumping duties. Only Oregon Steel Mills Inc., then Gilmore Steel Corp., favored the antidumping duty order.

Pursuant to authority the ITA found in 19 U.S.C. Sec. 1675(b) and (c) (1982 & Supp. IV 1986), the ITA proceeded to revoke the antidumping order on the ground of lack of industry support for its continuance. See 51 Fed.Reg. 13,042 (April 17, 1986). Oregon Steel filed suit in the Court of International Trade, seeking to set aside the ITA's revocation, and prevailed on the legal ground that the ITA had not complied with the statutory provisions governing revocation. More particularly, the ITA did not determine, indeed, made no attempt to determine, that sales of Korean steel plate at less-than-fair-value (LTFV) had ceased, which, per the court, was a necessary determination for revocation by the ITA. Gilmore Steel, 672 F.Supp. at 1465. On appeal, 1 the ITA maintains that, under section 1675, it may revoke an antidumping order because of lack of industry support and need not investigate whether current sales of the subject goods are LTFV sales. We agree. No other ground for holding the revocation improper is asserted. Accordingly, we reverse the trial court's judgment and vacate its order directing the ITA to reinstate the subject antidumping duty order.

II

Issue

Whether the ITA's authority under 19 U.S.C. Sec. 1675(c) to revoke an antidumping duty order is dependent upon a finding that LTFV sales of the imports which are subject to the order had ceased.

III

Opinion
A

When a determination has been made under 19 U.S.C. Sec. 1673d(a) (1982 & Supp. IV 1986) that certain imports are being, or are likely to be, sold in the United States at less than fair value to the injury of a United States industry, antidumping duties are imposed in an amount to correct the "unfair" pricing of such imports. Because market conditions are dynamic, the statute provides for subsequent revision of the amount of the duties, as well as for complete or partial revocation of the antidumping duty order. The pertinent provisions of the statute relating to the ITA's authority on these matters are found in 19 U.S.C. Sec. 1675, which provides, as amended in 1984:

Sec. 1675. Administrative review of determinations

(a) Periodic review of amount of duty

(1) In general

At least once during each 12-month period beginning on the anniversary of the date of publication of ... an antidumping duty order ... the administering authority [ (the ITA) ], if a request for such a review has been received and after publication of notice of such review in the Federal Register, shall--

....

(B) review, and determine ... the amount of any antidumping duty, ...

....

and shall publish the results of such review, together with notice of any duty to be assessed, estimated duty to be deposited, or investigation to be resumed in the Federal Register.

....

(b) Review upon information or request

(1) In general

Whenever the administering authority ... receives information concerning, or a request for the review of, ... an affirmative determination made under section ... 1673d(a) ... of this title, which shows changed circumstances sufficient to warrant a review of such determination, it shall conduct such a review after publishing notice of the review in the Federal Register....

....

(c) Revocation of ... antidumping duty order

The administering authority may revoke, in whole or in part, ... an antidumping duty order ... after review under this section.

Oregon Steel argues for affirmance of the trial court's ruling that a review is merely "triggered" under section 1675(b) by evidence of "changed circumstances" and that the review by the ITA of its affirmative determination requires the ITA to make an investigation into LTFV sales under section 1675(a), which the ITA here failed to make. Thus, per Oregon Steel, the ITA laid no foundation to exercise its revocation authority.

One appellant, the government, argues that the Secretary of Commerce has reasonably interpreted the statute to permit revocation for reasons other than the cessation of LTFV sales, see 19 C.F.R. Sec. 353.54(c)(3) (1987); that the court failed to give deference to the administrative authority's interpretation; and that the court's interpretation renders section 1675(b) superfluous and, therefore, meaningless. Appellant Pohang Iron & Steel Co., Ltd. (POSCO) argues more specifically that only section 1675(b) provides for review of an affirmative determination under section 1673d(a) and, thus, it is the review necessary for purposes of revocation; that a change in circumstances not only triggers review, but also may provide a basis, if the change negates any element that was a prerequisite for the ITA's affirmative determination, for revocation of the order; that normally the "changed circumstances" are the cessation of LTFV sales, found after a review under section 1675(a), which is an element of the ITA's affirmative determination; that another element in the affirmative determination is, however, industry support for the antidumping duty order; and, thus, that lack of industry support alone is a ground for revocation.

It is unclear whether the government endorses POSCO's analysis of the statute or treats a LTFV review under section 1675(a) and a changed circumstances review under section 1675(b) as different bases for revocation. Under either view, however, the ITA's revocation authority, per appellants, need not rest on the performance of a review under section 1675(a).

B

A straightforward reading of the above-quoted statutory provisions indicates that section 1675(a) allows the ITA to adjust the amount of antidumping duties; section 1675(b) allows the ITA to review its affirmative determination; and section 1675(c) gives the ITA authority to revoke an outstanding antidumping order "after review under this section." Logically, revocation must be predicated on section 1675(b) review, not merely on review under section 1675(a). Simply because, under subsection (a), duties are reduced to zero for a particular review period does not mandate revocation of the underlying section 1673d(a) affirmative determination. Moreover, under the Secretary's interpretation of the ITA's revocation authority, a finding of no LTFV sales, after review under section 1675(a), at most may trigger a further review. See Matsushita Elec. Indus. Co. v. United States, 823 F.2d 505, 506-07 (Fed.Cir.1987). This interpretation is reflected in the implementing regulation, 19 C.F.R. Sec. 353.54 (1987), which provides in part:

(a) In general. Whenever the Secretary determines that sales of merchandise subject to an Antidumping Finding or Order or a suspended investigation are no longer being made at less than fair value within the meaning of section 731 of the Act and is satisfied that there is no likelihood of resumption of sales at less than fair value, he may act to revoke or terminate, in whole or in part, such Order or Finding or suspended investigation. [Emphasis added.]

Thus, a section 1675(a) review is insufficient in itself to provide a ground for revocation of the antidumping duty order. Section 1675(b), by its terms, is the section providing for review of the ITA's section 1673d(a) affirmative determination itself.

Section 1675(b) sets out no specific conditions for setting aside an extant section 1673d(a) affirmative determination. This court has recognized that, of necessity, the Secretary has...

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