Novosteel Sa v. U.S., Bethlehem Steel Corp.

• Decision Date: 26 March 2002
• Docket Number: No. 01-1274.,01-1274.
• Parties: NOVOSTEEL SA, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee, and Bethlehem Steel Corporation and U.S. Steel Group, a unit of USX Corporation (now known as United States Steel LLC), Defendants-Appellees.
• Court: U.S. Court of Appeals — Federal Circuit

284 F.3d 1261

NOVOSTEEL SA, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee, and Bethlehem Steel Corporation and U.S. Steel Group, a unit of USX Corporation (now known as United States Steel LLC), Defendants-Appellees.

No. 01-1274.

United States Court of Appeals, Federal Circuit.

DECIDED: March 26, 2002.

COPYRIGHT MATERIAL OMITTED

Pamela L. St. Peter, Edmund Maciorowski, P.C., of Bloomfield Hills, Michigan, argued for plaintiff-appellant. With her on the brief was Edmund Maciorowski.

Mark L. Josephs, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee. On the brief were Stuart E. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director; and Velta A. Melnbrencis, Assistant Director. Of counsel was A. David Lafer, Senior Trial Counsel. Of counsel on the brief were John D. McInerney, Chief Counsel for Import Administration; Berniece A. Browne, Senior Counsel; and David W. Richardson, Attorney, Office of the Chief Counsel for Import Administration, Department of Commerce, of Washington, DC.

Jennifer Danner Riccardi, Dewey Ballentine LLP, of Washington, DC, argued for defendants-appellees. With her on the brief were Michael Stein, Bradford L. Ward, and Jon Avins. Of counsel were Rory F. Quirk, and Navin Joneja.

Before MICHEL, LOURIE and DYK, Circuit Judges.

MICHEL, Circuit Judge.

Plaintiff-Appellant Novosteel SA appeals a decision by the United States Court of International Trade holding that antidumping and countervailing duty orders addressed to "cut-to-length carbon steel plate from Germany" applied to the steel "profile slabs" that Novosteel was importing from a German company called Reiner Brach. Novosteel SA v. United States, 128 F.Supp.2d 720, 722 (CIT 2001). Specifically, the court determined that substantial evidence supported the scope determination by the Commerce Department that the two orders, as well as the initial sources of evidence used to interpret them (i.e., the petitions for the orders and the initial determinations by Commerce and the International Trade Commission), did not unambiguously include or exclude the profile slab at issue. As a result, the court said, Commerce properly resorted to the five-part "Diversified Products" criteria to clarify the orders' scope. And the application of those criteria, the court concluded, showed that these two orders did indeed cover the Reiner Brach profile slab.

We affirm the judgment of the Court of International Trade. First, contrary to Novosteel's suggestions, the petitions that led to the issuance of the orders did not need to specifically identify the Reiner Brach profile slab in order to cover them; our precedent, to say nothing of the regulations, makes clear that neither a petition nor an antidumping or countervailing duty order requires that level of specificity. Similarly, the fact that neither the petitions nor the orders (called the "Plate Orders") listed the specific "HTSUS" (Harmonized Tariff Schedule of the United States) number assigned to the Reiner Brach profile slab does not mean that the Orders also unambiguously excluded this product. As a matter of law, a petition need not list the entire universe of products or the numbers assigned to them under the HTSUS in order to cover those products. And the petitions here, as more fully explained below, described the products covered by the Orders using "dimensional" criteria and other definitions; they did not define the scope of the requested Orders in terms of the HTSUS and thus did not purposefully limit themselves to the HTSUS products that the petitions did list. And so, the omission of the HTSUS number for Reiner Brach profile slab does not mean that the Orders necessarily excluded that product.

Next, we discern no reversible error with the definition that the court assigned to a disputed term ("flat-rolled") in the Orders. Novosteel, simply put, has not explained how the court's definition differs in any material respect from the definition that Novosteel asserts the court should have used — the HTSUS definition of "flat-rolled." Meanwhile, nothing in an earlier scope determination, see Wirth Ltd. v. United States, 5 F.Supp.2d 968 (CIT 1998), indicates that the Commerce Department had to apply a certain meaning to the terms "flat-rolled" or "further worked" so that they could encompass only a set type, number and order of steel-production processes. And substantial evidence — including a brochure that the German exporter (Reiner Brach) used to describe its profile slabs — supports the finding that Reiner Brach could have had additional treatment or processes performed on its steel profile slab, i.e., that it was possibly having this steel "further worked" within the meaning of the Orders, thereby justifying resort to the Diversified Products criteria. Last, by not raising an argument about the retroactive application of a scope determination until it filed its summary judgment reply brief, Novosteel has waived the right to have us address that argument in the first instance.

Background

This case presents the question whether two related antidumping and countervailing duty orders addressed to a type of steel imported from Germany covered the steel "profile slab" that Plaintiff-Appellant Novosteel had imported for approximately four years.

A. The Plate Orders Issue in 1993.

In the early 1990s, Bethlehem Steel and the other Defendant-Intervenors in this case filed petitions with officials of the Commerce Department asking that they investigate and issue antidumping and countervailing duty orders against certain cut-to-length steel imported into the United States from Germany. As with all such petitions filed with Commerce, Bethlehem Steel and the other domestic steel producers alleged that companies were importing and selling steel from Germany below cost and were thereby causing "material harm" to domestic steel sellers.

In their petitions, the Defendant-Intervenors did not specifically identify "profile slab," much less the profile slab exported by the German company Reiner Brach, as a product that fell within the scope of its petitions. In the section entitled "Scope of Investigation and Description of the Merchandise," the petitions instead refer to the dimensional characteristics of the steel covered by the requested Orders, as well as to definitions from the "American Iron and Steel Institute product categories" and the "American Society for Testing and Materials standards specification numbers." On one page, the petitions also refer to and quote (in a footnote) the definition of "flat-rolled products" according to the Harmonized Tariff Schedule of the United States. (J.A. 88 n. 5) (quoting HTSUS, Chapter 72, Note 1(k)). Generally, however, the six pages devoted to the respective petitions' "description of merchandise" define the type of steel at issue with little reference to the HTSUS.

On the last page of this section, the petitions do list certain products according to the HTSUS classification numbers that the Customs Service had assigned to them. As the petitions themselves stated, products with these HTSUS numbers were "covered by [these] Petition[s]." The classification number "HTSUS 7207" — the number later assigned to Novosteel's imported profile slab — does not appear among them.

In August 1993, the Commerce Department, having investigated the Defendant-Intervenors' petitions, went ahead and issued both antidumping and countervailing duty orders directed to the importation of "cut-to-length carbon steel plate from Germany." The two orders, called the "Plate Orders," defined the products that they covered as:

Certain hot-rolled carbon steel flat-rolled products in straight lengths, of rectangular shape, hot rolled, neither clad, plated, nor coated with metal, whether or not painted, varnished, or coated with plastics or other nonmetallic substances, 4.75 millimeters or more in thickness and of a width which exceeds 150 millimeters and measures at least twice the thickness....

58 Fed. Reg. 43,756, 43,758 (Aug. 17, 1993); 58 Fed. Reg. 44,170 (Aug. 19, 1993) (emphasis added). As with the earlier petitions, the Plate Orders did not list HTSUS 7207 as one of the products that they covered. The Orders did state, however, that the listing of classification numbers did not alone determine whether any particular product fell within their scope: "Although the Harmonized Tariff Schedule of the United States ... subheadings are provided for convenience and customs purposes, our written descriptions of the scope of these proceedings are dispositive." Id. (emphasis added).

B. Novosteel Imports Reiner Brach Profile Slab from 1994 to 1998.

In June 1994, Novosteel (through its wholly owned subsidiary Barzalex) began importing into the United States a type of steel called "profile slab" from Reiner Brach GmbH & Co. A few months earlier, Novosteel had obtained a ruling letter from the Customs Service that classified this profile slab under the "heading 7207, HTSUS." The heading signified that, in the view of the Customs Service, the profile slab constituted an "unfinished product of iron or non-alloy steel." In addition, because the 1993 Plate Orders did not specifically list HTSUS 7207, Customs did not require Novosteel to pay estimated antidumping or countervailing duties on this product at the time of entry. Novosteel proceeded to import Reiner Brach's profile slab for the next four years without having to pay any estimated import duties.

In June 1998, however, Customs officials informed Novosteel that a review of its import record showed that the Reiner Brach profile slab did indeed fall within the scope of the Plate Orders. Novosteel stopped importing the Reiner Brach profile slab in July 1998, though it "effectuated 14 entries" of this product between August 1998 and February 1999. Also in August 1998, Novosteel followed the advice given by Customs officials and...