Bethlehem Steel Corp. v. U.S.

• Decision Date: 27 August 1984
• Docket Number: No. 84-714,84-714
• Citation: 742 F.2d 1405
• Parties: , 2 Fed. Cir. (T) 112 BETHLEHEM STEEL CORPORATION, Appellant, v. The UNITED STATES, Appellee. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1405

742 F.2d 1405

6 ITRD 1054, 2 Fed. Cir. (T) 112

BETHLEHEM STEEL CORPORATION, Appellant, v. The UNITED STATES, Appellee.

Appeal No. 84-714.

United States Court of Appeals Federal Circuit.

Aug. 27, 1984.

Terence P. Stewart, Washington, D.C., argued for appellant. With him on the brief were Eugene L. Stewart, Paul W. Jameson, and Mary Elizabeth Tuck, Washington, D.C.

Curtis H. Barnette, Gen. Counsel, Meredith Hemphill, Jr., Asst. Gen. Counsel, Bethlehem, Pa., Laird D. Patterson, Gen. Atty., Washington, D.C. and Roger W. Robinson, Gen. Atty., Bethlehem, Pa., of counsel.

Francis J. Sailer, Washington, D.C., argued for appellee. With him on the brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Washington, D.C., and Velta A. Melnbrencis, Asst. Director, New York City.

Before DAVIS, Circuit Judge, SKELTON, Senior Circuit Judge, and MILLER, Circuit Judge.

DAVIS, Circuit Judge.

Bethlehem Steel Corporation (Bethlehem) appeals from a decision of the Court of International Trade (CIT), dismissing appellant's complaint against appellee United States (the Government) for lack of jurisdiction on the ground that the former's summons was not timely filed pursuant to 19 U.S.C. Sec. 1516a(a)(2)(A)(i) and (B)(ii). Bethlehem Steel Corp. v. United States, 571 F.Supp. 1265 (CIT 1983). We reverse, holding that Bethlehem's summons was timely filed, and remand the case to the CIT for consideration on the merits.

I

In January 1982, five other American steel companies filed countervailing duty petitions with the Commerce Department's International Trade Administration (ITA). The petitions alleged, inter alia, that the manufacturers, producers, or exporters of certain Spanish steel products were receiving benefits from the Spanish government which constituted subsidies. ¹ Several days later, Bethlehem requested that the ITA include Bethlehem as a party to the investigative proceedings, pursuant to 19 C.F.R. Sec. 355.7(i)(4). In February 1982, the ITA issued a notice of its determination to initiate countervailing duty investigations of nine carbon steel products from Spain. 47 Fed.Reg. 5753. In June 1982, the International Trade Commission (ITC) made a preliminary determination that there was a "reasonable indication" that six types of Spanish steel imports (of the nine types which were under investigation) were "materially injur[ing] or threaten[ing] ... [to] material[ly] injur[e]" an American industry. 47 Fed.Reg. 26038. ² In August 1982, the ITA published a notice of its "Preliminary Affirmative Countervailing Duty Determinations; Certain Steel Products from Spain". 47 Fed.Reg. 38161. That notice announced the ITA's preliminary determination that "there is reason to believe or suspect that certain benefits which constitute subsidies ... are being provided to manufacturers, producers, or exporters in Spain of certain steel products ...." The notice went on to identify three programs which the ITA had preliminarily found to confer benefits constituting subsidies on the six products still under investigation. It also reported the ITA's preliminary finding that the Desgravacion Fiscal a la Exportacion (DFE) program was not a subsidy because the amount of money it rebated to exporters was not excessive. ³

Pursuant to 19 U.S.C. Sec. 1671b(b), the ITA estimated the net amount of the subsidy it believed that manufacturers, producers and exporters of the six products were receiving. It then directed the U.S. Customs Service to suspend liquidation of all entries from Spain of the six steel products under investigation and to require a cash deposit or the posting of a bond or security for each entry after the date of the notice of the preliminary affirmative determination. See 19 U.S.C. Sec. 1671b(d). ⁴

The ITA published its "Final Affirmative Countervailing Duty Determinations" on November 15, 1982. 47 Fed.Reg. 51438. In that notice, the ITA determined that the three programs which it had preliminarily labeled as subsidies did, in fact, constitute subsidies. In addition, it found that two of the Spanish manufacturers, producers, and importers subject to the investigation were receiving countervailable cash grants. The notice also said that the ITA had determined that the DFE program (as well as other programs) did not constitute a subsidy.

As a result of that notice, the suspension of liquidation as to all six products from Spain was continued, cash deposits or bonds in specified amounts were required the ITC was notified of the determinations, and the ITC's 45-day maximum time period for its final injury investigations began. The ITC notified the ITA of its final affirmative injury determination on December 21, 1982. 48 Fed.Reg. 51 (January 3, 1983). It found that an American industry was "materially injured" as a result of imports of the six Spanish steel products. On January 3, 1983, the ITA issued countervailing duty orders covering all entries of the six products. 48 Fed.Reg. 51.

On January 7, 1983, Bethlehem filed a summons and complaint with the Court of International Trade challenging one aspect of the ITA's final determination on Spanish steel products--the finding that the DFE was not a subsidy. In September 1983, the CIT dismissed the action for lack of subject matter jurisdiction because the summons had not been, in the court's view, filed within the time limits specified by 19 U.S.C. Sec. 1515a(a)(2)(A) and (B). Those subsections provide, in pertinent part:

(2) Review of determinations on record

(A) In general.--Within thirty days after the date of publication in the Federal Register of--

(i) notice of any determination described in clause (ii), (iii), (iv), or (v) of subparagraph (B), or

(ii) an antidumping or countervailing duty order based upon any determination described in clause (i) of subparagraph (B), an interested party who is a party to the proceeding in connection with which the matter arises may commence an action in the United States Court of International Trade by filing a summons, and within thirty days thereafter a complaint, each with the content and in the form, manner, and style prescribed by the rules of that court, contesting any factual findings or legal conclusions upon which the determination is based.

(B) Reviewable determinations.--The determinations which may be contested under subparagraph (A) are as follows:

(i) Final affirmative determinations by the Secretary and by the Commission under section 1303 of this title, or by the administering authority [the Commerce Department] and by the Commission under section 1671d or 1673d of this title.

(ii) A final negative determination by the Secretary, the administering authority, or the Commission under section 1303, 1671d, or 1673d of this title. ⁵

In the CIT's eyes, the ITA's finding regarding the DFE was a "final negative determination" within the meaning of 19 U.S.C. Sec. 1516a(a)(2)(A)(i) and (B)(ii), supra, and could be reviewed by the CIT only if a summons were filed within thirty days of publication (November 15, 1982) of the ITA's final determination in the Federal Register. Bethlehem's summons, accordingly, was deemed untimely because it was filed beyond that thirty-day limit. The court rejected Bethlehem's contention that the DFE finding was merely a negative aspect of a "final affirmative determination" which should be appealed at a later time, after the countervailing duty order had been issued. See 19 U.S.C. Sec. 1516a(a)(2)(A)(ii) and (B)(i). The court relied, instead, on the CIT opinion in Republic Steel Corp. v. United States, 4 CIT 17 (1982), which had held that the preliminary findings by the ITA that certain programs did not constitute subsidies were "negative determinations" and could be appealed immediately after their publication.

II

The statute distinguishes between a "final affirmative determination" and a "final negative determination" in countervailing duty matters, both in the procedural provisions for the administrative proceedings (19 U.S.C. Sec. 1671d) and in the appeal provision just quoted (19 U.S.C. Sec. 1516a(a)(2)(B)). Under that scheme, the question is whether the ITA's holding that the DFE was not a subsidy with respect to the products at issue was a "negative determination" in itself, or was merely one part or aspect of an overall "affirmative determination" that as a whole the affected products had been aided by subsidies. We agree with the latter position and also hold that Congress authorized (in 19 U.S.C. Sec. 1516a(a)(2)(A)(ii) and Sec. 1516a(a)(2)(B)(i), supra ) domestic interests like Bethlehem to appeal, after publication of a countervailing duty order, from any adverse conclusion in such an overall "affirmative determination" 84-714 lessening the amount of countervailing duties. Accordingly, Bethlehem's appeal here was timely. ⁶

The very form of the ITA's finding that the DFE program did not constitute a subsidy strongly tends to demonstrate that it was not an appealable "negative determination" in itself. ⁷ That particular finding was included towards the end of a long public notice entitled, "Final Affirmative Countervailing Duty Determinations; Certain Steel Products from Spain". 47 Fed.Reg. 51438 (November 15, 1982) (emphasis added). The notice began with a summary that reported only that the ITA had "determined that certain benefits which constitute subsidies are being provided to manufacturers, producers, or exporters in Spain of certain steel products ...." The notice listed the four programs which the ITA had found to confer subsidies on the six products under investigation. The ITA found that all of the six products received some subsidy; it did not determine that any of the products received no subsidy at all. Consequently, liquidation of entries of all six imported products remained suspended and subject to the requirement of the posting of a cash deposit, bond, or security. ⁸

The adverse impact on Bethlehem of the ITA's negative...