862 F.2d 1541 (Fed. Cir. 1988), 88-1242, Oregon Steel Mills Inc. v. United States (Dept. of Commerce and Intern. Trade Admin.)

Docket Nº:88-1242, 88-1243.
Citation:862 F.2d 1541
Party Name:OREGON STEEL MILLS INC., Plaintiff-Appellee, v. UNITED STATES (DEPARTMENT OF COMMERCE AND INTERNATIONAL TRADE ADMINISTRATION) and Pohang Iron & Steel Co., Ltd., Defendants-Appellants.
Case Date:November 23, 1988
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1541

862 F.2d 1541 (Fed. Cir. 1988)

OREGON STEEL MILLS INC., Plaintiff-Appellee,

v.

UNITED STATES (DEPARTMENT OF COMMERCE AND INTERNATIONAL

TRADE ADMINISTRATION) and Pohang Iron & Steel Co.,

Ltd., Defendants-Appellants.

Nos. 88-1242, 88-1243.

United States Court of Appeals, Federal Circuit

November 23, 1988

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.

Page 1542

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

Page 1543

(

  1. 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...

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