United States Steel Corp. v. United States , 5 Ct. Int'l Trade 287 ( 1983 )

Memorandum Opinion and Order

Watson, Judge:

In this opinion, the Court rules on a motion to dismiss and untangles a snarl of related procedural matters. Court No. 82-12-01707 was initiated on December 13, 1982, to obtain judicial review of a final subsidy determination, published by the International Trade Administration of the Department of Commerce (ITA) on November 15, 1982,¹ in a countervailing duty investigation of certain steel products from Spain.

On January 3, 1983, the ITA published a countervailing duty order ² in the aforementioned Spanish steel proceeding.

On January 11, 1983, plaintiffs filed an amended complaint, reciting the ITA’s publication of the countervailing duty order.

On January 31, 1983, defendants moved to dismiss Court No. 82-12-01707 as premature, or, alternatively, to dismiss for lack of standing that portion of the complaint which appears to challenge a final determination in a countervailing duty investigation of certain stainless steel products from Spain.³

On March 9, 1983, plaintiffs moved for leave to file a second amended complaint which delete any reference in the complaint to the final subsidy determination arising from the investigation of Spanish stainless steel. Plaintiffs have also moved to consolidate Court No. 82-12-01707 with Court No. 82-10-01361 (a challenge to subsidy determinations and suspension agreement arising out of a countervailing duty investigation of carbon steel plate from Brazil and a challenge to subsidy determinations arising out of a countervailing duty investigation of steel from South Africa). Defendants have moved to suspend all proceedings in Court No. 82-12-01707 pending resolution of their motion to dismiss in that case.

On January 31, 1983, plaintiffs commenced Court No. 82-1-00152 to challenge a final subsidy determination, published by the ITA on January 20, 1983 ⁴ in a countervailing duty investigation of carbon steel plate from Brazil; a decision by the ITA, published on January 4, 1983,⁵ to suspend the antidumping investigation of carbon steel plate from Romania; and the same underlying ITA subsidy determinations in the Spanish steel countervailing duty investigation as were complained of in the earlier Court No. 82-12-01707.

On April 6, 1983, defendants moved to sever and redesignate the portion of Court No. 83-1-00152 which pertains to Romania. They also moved to sever the part of the action which pertains to Brazil and consolidate it with Court No. 82-10-01361. Plaintiffs have moved to consolidate Court Nos. 82-10-01361, 82-12-01707 and 83-1-00152, in their entirety.

The Court views defendants’ motion to dismiss Court No. 82-12-01707 as partially justified to the extent that the action seeks to challenge ITA methodologies which allegedly undervalued subsidies. Disputes over amounts of subsidies found to exist are challenges to affirmative determinations which must await an action commenced after the issuance of a countervailing duty order.⁶ Other disputes, involving determinations that subsidies did not exist at all, represent challenges to negative determinations which may be raised in an action commenced prior to the issuance of a countervailing duty order, as in Court No. 82-12-01707.

The Court recently discussed the distinctions to be made in a case such as this:

In support of their motion to sever and dismiss the earlier action 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 defendants’ 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 subsidies] . . . 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.

United States Steel Corp. v. United States, 5 CIT 272 (1983).

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

Ordered that Count I of plaintiffs’ complaint in Court No. 82-12-01707 which seeks to challenge the ITA’s methods of quantifying subsidies found to exist during the investigation of certain steel products from Spain is hereby severed and dismissed; and it is further

Ordered that all matters concerning the Spanish stainless steel countervailing duty determination are hereby stricken from the complaint in Court No. 82-12-01707; and it is further

Ordered that Counts I, II, IV (Brazil) and those parts of Counts III and V that pertain to Brazil in plaintiffs’ complaint in Court No. 82-1-00152 are hereby severed and consolidated with Court No. 82-10-01361; and it is further

Ordered that Count VI (Romania) of plaintiffs’ complaint in Court No. 83-1-00152 is hereby severed and redesignated Court No. 83-1-00152S; and it is further

Ordered that the remainder of Court No. 82-12-01707 (Spain) is hereby consolidated with the remainder of Court No. 83-1-00152 (Spain); and it is further

Ordered that plaintiffs shall file amended complaints in Consolidated Court No. 82-12-01707, and in 83-1-00152S, and shall also file a supplemental complaint in Consolidated Court No. 82-10-01361 within 15 days of the date of entry of this Order in accordance with the above-ordered severances and consolidations; and it is further

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

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

Ordered that defendants’ motion to suspend Court No. 82-12-01707 is denied.

ABSTRACTS OF COURT OF INTERNATIONAL TRADE DECISIONS

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New Orleans Tube mats Los Angeles; New York Not stated Los Angeles; San Francis* co; Charleston; Miami Not stated Los Angeles Not stated New York; Los Angeles Not stated Agreed statement of facts Agreed statement of facts Agreed statement of facts Agreed statement of facts Agreed statement of facts Values specified on entry papers by liquidating officer excluding one-half of amount added for assists as set forth on schedule of protests attached to decision and judgment Values specified on entry papers by liquidating officer excluding one-half of amount added for assists as set forth on schedule of protests attached to decision and judgment Values specified on entry papers by liquidating officer excluding one-half of amount added for assists as set forth on schedule of protests attached to decision and judgment Values specified on entry papers by liquidating officer excluding one-half of amount added for assists as set forth on schedule of protests attached to decision and judgment F.o.b. unit invoice prices plus 20% of difference between f.o.b. unit invoice prices and appraised values £xport value Constructed value Constructed value Constructed value Constructed value B65/22375 80-8-01335 79-12-02028 79-12-01809 79-5-00873 M. G. Maher Co. Topp Electronics, Inc. Topp Electronics, Inc. Topp Electronics, Inc. Topp Electronics, Inc. Watson, J. January 13, 1983 Newman, J. January 13, 1983 Newman, J. January 13, 1983 Newman, J. January 13. 1983 Newman, J. January 13, 1983 R83/87 R83/86 R83/85 R83/84 R83/83 PORT OF ENTRY AND MERCHANDISE BASIS HELD VALUE BASIS OF VALUATION COURT NO. PLAINTIFF JUDGE & DATE OF DECISION DECISION NUMBER

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1 47 Fed. Reg. 51438-53 (1982).

2 48 Fed. Reg. 51-52 (1983).

3 47 Fed. Reg. 51453-60 (1982).

4 48 Fed. Reg. 2568-78 (1983).

5 48 Fed. Reg. 317-20 (1983).

6 Such a dispute over quantification of a subsidy cannot be validated or initiated by means of an amended complaint in an action commenced before the issuance of a countervailing duty order. A separate action is required, which, in accordance with Rule 3(a) of this Court, must be commenced by the filing of a summons. As it happens, plaintiffs preserved the quantification dispute by properly commencing Court No. 83-1-00152.