United States Steel Corp. v. United States , 5 Ct. Int'l Trade 272 ( 1983 )

Memorandum Opinion and Order

Watson, Judge:

This opinion resolves a motion to dismiss and other related procedural matters. Court No. 83-1-00134 was commenced on January 26, 1983, to obtain judicial review of a final subsidy determination, published by the International Trade Administration of the Department of Commerce (ITA) on December 27, 1982, in a countervailing duty investigation of certain steel products from the Republic of Korea, and a decision by the ITA, published on December 27, 1982, to suspend the countervailing duty investigation of small diameter welded carbon steel pipes and tubes from Brazil.

On February 15, 1983, the International Trade Commission (ITC) published a final affirmative injury determination and on February 18, 1983, the ITA published a countervailing duty order in the aforementioned Korean steel proceeding.

On March 18, 1983, plaintiff commenced Court No. 83-3-00402 to challenge the same underlying ITA subsidy determinations in the Korean steel countervailing duty investigation as were complained of in the earlier Court No. 83-1-00134.

On March 25, 1983, defendants moved to sever and dismiss for prematurity the portion of the first action challenging the ITA’s final subsidy determinations in the Korean investigation. Defendants have also moved to suspend the later action pending resolution of their motion to dismiss the earlier action. Plaintiff has moved to consolidate both actions.

In support of their motion to sever and dismiss the Korean part of the earlier action (Court No. 83-1-00134), defendants note that this Court possesses jurisdiction to review what they characterize as an “affirmative final determination” in a countervailing duty proceeding only if the action is commenced within 30 days after the publication of a countervailing duty order. 19 U.S.C. § 1516a(a)(2)(A)(ii)- In contrast, plaintiff views the disputed ITA subsidy determinations as “negative final determinations,” eligible for review under 19 U.S.C. § 1516a(a)(2)(B)(ii) by means of an action commenced within 30 days after publication of notice of the determination.

The Court rejects defendant’s characterization of the challenged determination as an indivisible affirmative determination which cannot be judicially reviewed in an action commenced prior to the publication of a countervailing duty order.

In Republic Steel Corp. v. United States, 4 CIT 17 (1982), this Court held that preliminary determinations by the ITA that a particular practice is not a subsidy or that a’particular producer is not receiving a subsidy are negative determinations, and therefore subject to judicial review. With one exception, the Court sees the same sort of determinations challenged in the action sought to be dismissed and consequently sees the same grounds for judicial review as in Republic.

Only that portion of the earlier action which challenges the ITA’s methods of quantifying the subsidy from various preferential tax and tariff incentives to certain Korean steel producers was premature. The ITA’s use of methodology allegedly undervaluing the amount of countervailable subsidies did not constitute a discrete “negative” determination under Republic, and did not present the same potential for interim injury as did the determinations that a particular practice was not a subsidy or that a particular producer was not receiving a subsidy.

For these reasons, and in the interest of efficient judicial resolution of these disputes, it is hereby

Ordered that Count IV of plaintiffs complaint in Court No. 83-1-00134 which seeks to challenge the ITA’s methods of quántifying the subsidy from various preferential tax and tariff incentives to various Korean steel producers is hereby severed and dismissed; and it is further.

Ordered that the portion of Court No. 83-1-00134 which challenges the ITA’s decision to suspend the countervailing duty investigation involving small diameter welded carbon steel pipes and tubes from Brazil is hereby severed and designated as Court No. 82-1-00134S; and it is further

Ordered that the remainder of Court No. 83-1-00134 is hereby consolidated with Court No. 83-3-00402; and it is further

Ordered that plaintiff United States Steel shall file amended complaints in Court No. 83-1-00134A and Consolidated Court No. 83-1-00134 within 15 days in accordance with the above-ordered severances and consolidations; and it is further

Ordered that defendants shall serve answers to the amended complaints within 15 days from the service of such complaints; and it is further

Ordered that defendants shall, within 30 days from the date of filing of the amended complaints, file the administrative records; and it is further

Ordered that defendants’ motion to suspend Court No. 83-3-00402 is denied.