Ltv Steel Co., Inc. v. U.S.

• Decision Date: 25 July 1997
• Docket Number: Slip No. 97-104.,Court No. 93-09-00568-CVD.
• Citation: 985 F.Supp. 95
• Parties: LTV STEEL CO., INC., AK Steel Corporation, Bethlehem Steel Corporation, Geneva Steel, Gulf States Steel Incorporated of Alabama, Inland Steel Industries, Incorporated, Laclede Steel Company, Lukens Steel Company, National Steel Corporation, Sharon Steel Corporation, U.S. Steel Group a Unit of USX Corporation and WCI Steel, Incorporated, Plaintiffs, v. UNITED STATES, Defendant, and AG Der Dillinger Huttenwerke, et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

985 F.Supp. 95

LTV STEEL CO., INC., AK Steel Corporation, Bethlehem Steel Corporation, Geneva Steel, Gulf States Steel Incorporated of Alabama, Inland Steel Industries, Incorporated, Laclede Steel Company, Lukens Steel Company, National Steel Corporation, Sharon Steel Corporation, U.S. Steel Group a Unit of USX Corporation and WCI Steel, Incorporated, Plaintiffs, v. UNITED STATES, Defendant, and AG Der Dillinger Huttenwerke, et al., Defendant-Intervenors.

Slip No. 97-104.

Court No. 93-09-00568-CVD.

United States Court of International Trade.

July 25, 1997.

COPYRIGHT MATERIAL OMITTED

Dewey Ballantine, Washington, DC (Michael H. Stein, Alan Wm. Wolff, Martha J. Talley, John A. Ragosta, Guy C. Smith, O. Julia Weller, Kristen M. Neller: on brief), (John A. Ragosta, Guy C. Smith: on oral argument); Skadden, Arps, Slate, Meagher & Flom (John J. Mangan, Robert E. Lighthizer, D. Scott Nance: on brief), counsel for LTV Steel Company, Incorporated, et al.

Frank W. Hunger, Assistant Attorney General of the United States; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (A. David Lafer, Jeffrey M. Telep); Jeffrey C. Lowe, Attorney-Advisor, Office of Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC, counsel for defendant.

Sharretts, Paley, Carter & Blauvelt, P.C., Washington, DC (Gail T. Cumins, Ned H. Marshak, Beatrice A. Brickell), counsel for Thyssen Stahl AG, et al.; LeBoef, Lamb, Greene & MacRae, L.L.P., Washington, DC (Pierre F. de Ravel d'Esclapon, Mary Patricia Michel), counsel for AG der Dillinger Hüttenwerke; Hogan & Hartson, Washington, DC (Lewis E. Leibowitz, Steven J. Routh), counsel for Fried. Krupp AG Hoesch-Krupp, et al.

OPINION

CARMAN, Chief Judge.

In accordance with a February 18, 1994 scheduling order, and after extensive consultation with the parties and upon their consent, the parties were directed to brief five general issues regarding determinations by the Department of Commerce, International Trade Administration ("ITA") addressing steel products from various countries.¹ The order also set forth a schedule for the parties to submit briefs on country-specific issues raised by the ITA's determinations. In prior opinions, this Court has disposed of all challenges to the five general issues and they are presently on appeal before the United States Court of Appeals for the Federal Circuit. See British Steel, PLC v. United States, 936 F.Supp. 1053 (CIT 1996) ("British Steel IV"); British Steel plc v. United States, 929 F.Supp. 426 (CIT 1996) ("British Steel III"); British Steel plc v. United States, 924 F.Supp. 139 (CIT 1996) ("British Steel II"), appeals docketed, Nos. 96-1401 to -06 (Fed. Cir. June 21, 1996); British Steel plc v. United States, 879 F.Supp. 1254 (CIT 1995) ("British Steel I"), appeals docketed, Nos. 96-1401 to -06 (Fed. Cir. June 21, 1996) (collectively the "British Steel cases" or the "general issues opinions"). What remains before this Court, therefore, are the parties' country-specific challenges to Commerce's steel determinations. This opinion will not address the challenges raised in the parties' papers regarding the propriety of Commerce's privatization methodology as this issue has been decided conclusively in the general issues opinions.² See British Steel IV, 936 F.Supp. at 1065-71; British Steel I, 879 F.Supp. at 1285-88. This opinion will address only the German country-specific issues which remain undecided following this Court's issuance of the British Steel opinions. While the Court believes this opinion is in no way inconsistent with its prior opinions addressing the general issues, to the extent this opinion is seen to conflict in any way with the Court's general issues decisions, this Court's findings in the general issues opinions will prevail.

Four Motions for Judgment on the Agency Record were filed in this case challenging the Department of Commerce's ("Department" or "Commerce") Final Affirmative Countervailing Duty Determinations: Certain Steel Products from Germany, 58 Fed.Reg. 37,315 (Dep't Comm.1993) (final determ.) ("German Certain Steel Final Determination"). The first motion was filed by AK Steel Corporation, Bethlehem Steel Corporation, Geneva Steel, Gulf States Steel Incorporated of Alabama, Inland Steel Industries, Incorporated, Laclede Steel Company, LTV Steel Company, Incorporated, Lukens Steel Company, National Steel Corporation, Sharon Steel Corporation, U.S. Steel Group a Unit of USX Corporation and WCI Steel, Incorporated (collectively "Domestic Producers" or "Domestics"). In British Steel IV, this Court completed its findings with respect to all issues related to privatization raised in the general issues opinions, and thus disposed of the privatization issues involved in this case. See British Steel IV, 936 F.Supp. at 1057. In so doing, this Court also addressed one of the four issues contained in the motion filed by Domestic Producers, and entered partial final judgment under U.S. CIT R. 54(b) as to the corresponding counts in the Domestic Producers' complaint.³ See id. at 1071-72. In this opinion, the Court will address the remaining three issues in the Domestic Producers' Motion for Judgment on the Agency Record.

The second Motion for Judgment on the Agency Record was filed by AG der Dillinger Hüttenwerke ("Dillinger"). In British Steel IV, this Court addressed in its entirety Dillinger's Motion for Judgment on the Agency Record and entered final judgment as to the complaint filed by Dillinger. See id at 1072. As a result, the Court will not address Dillinger's Motion for Judgment on the Agency Record in this opinion.

The third and fourth Motions for Judgment on the Agency Record were filed by Fried. Krupp AG Hoesch-Krupp and Krupp Hoesch Stahl AG (collectively "Fried. Krupp") and Thyssen Stahl AG, Thyssen Steel Detroit Company and Thyssen, Incorporated (collectively "Thyssen"). This Court will address Fried. Krupp's and Thyssen's Motions for Judgment on the Agency Record in their entirety in this opinion, because both of the motions concern country-specific issues which have not been addressed previously by this Court. The Court heard oral argument on the non-privatization issues in this case, and has jurisdiction over this matter under 28 U.S.C. § 1581(c) (1988).

STANDARD OF REVIEW

In reviewing a final determination by Commerce, this Court must sustain the determination 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) (1988). Substantial evidence is that which "`a reasonable mind might accept as adequate to support a conclusion.'" Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (citation omitted), quoted in Matsushita Elec. Indus. Co., Ltd. v. United States, 3 Fed Cir. (T) 44, 51, 750 F.2d 927, 933 (1984).

The Court must accord substantial weight to the agency's interpretation of a statute it administers. See American Lamb Co. v. United States, 4 Fed. Cir. (T) 47, 54, 785 F.2d 994, 1001 (1986). While Commerce has discretion in choosing one interpretation over another, "[t]he traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress." Board of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368, 106 S.Ct. 681, 686, 88 L.Ed.2d 691 (1986), cited in Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F.Supp. 961, 966 (1986) ("[T]his Court will not allow an agency, under the guise of lawful discretion, to contravene or ignore the intent of the legislature or the guiding purpose of the statute."), aff'd, 5 Fed. Cir. (T) 77, 810 F.2d 1137 (1987). The Court is not to substitute its own determination for the agency's but rather is to determine whether Commerce's determination is supported by substantial evidence on the record and is otherwise in accordance with law. See, e.g., Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (noting "the possibility of drawing two inconsistent conclusions from the evidence does not permit an administrative agency's finding from being supported by substantial evidence"); Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. at 465, 95 L.Ed. at 467-68 (1951) (reviewing court may not "even as to matters not requiring expertise ... displace the [agency's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo").

BACKGROUND

The countervailing duty determinations at issue in this case involve various grants provided by both the Government of Germany ("GOG") and various regional governments to six steel producers: AG der Dillinger Hüttenwerke ("Dillinger"), Hoesch SG ("Hoesch"), Klöckner Stahl AG ("Klöckner"), Preussag Stahl AG ("Preussag"), Thyssen AG ("Thyssen"), and Walzwerk Ilsenburg ("Ilsenburg") to ease the difficulties brought about by the decline in demand and reduced prices for steel and to reduce the financial hardships associated with plant closings and German reunification in the mid-1970s and 1980s. Commerce determined a variety of different "countervailable subsidies [we]re being provided to manufacturers, producers, or exporters in Germany of certain steel products" under a variety of programs.⁴ German Certain Steel Final Determination, 58 Fed.Reg. at 37,316. The countervailable subsidies included (1) capital investment grants; (2) structural improvement aids; (3) grants to companies investing in certain regions in Germany; (4) assistance to companies in depressed areas; (5) special subsidies for companies located in the zonal border area; (6) nonrecurring grants relating to environmental protection for steel companies investing in the Ruhr region; (7) grants for expenses incurred with respect to displaced...