Gilda Industries, Inc. v. United States

Slip Op. 06-149
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
GILDA INDUSTRIES, INC. :
:
Plaintiff, :
: Consol. Court. No. 03-00203
v. : Before: Barzilay, Judge
:
UNITED STATES, :
:
Defendant. :
____________________________________:
[Defendant’s motion to dismiss is granted.]
Decided: October 10, 2006
(Peter S. Herrick) for Plaintiff Gilda Industries, Inc.
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; (Jeanne E.
Davidson), Deputy Director; (David S. Silverbrand), Trial Attorney, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice; John J. Mahon, International Trade Field
Office, U.S. Department of Justice; William Busis, Office of General Counsel, Executive Office
of the President, Office of the United States Trade Representative, of counsel, for Defendant
United States.
OPINION
BARZILAY, JUDGE: In this case, on remand from the Court of Appeals from the Federal
Circuit, the court must determine whether the United States Trade Representative (“USTR”) has
complied with the “carousel provision” of 19 U.S.C. § 2416 with respect to its retaliatory duty
list, created as a result of the hormone beef dispute between the United States and European
Community (“EC”). Pursuant to the statute, the USTR must either undertake a periodic review
and revision of the list unless she qualifies for one of two statutory exceptions to this mandate:
(1) that the USTR believes that the trade dispute will be resolved imminently or (2) that “the
Court No. 03-00203 Page 2
[USTR] together with the petitioner involved in the initial investigation . . . (or if no petition was
filed, the affected United States industry) agree that it is unnecessary to revise the retaliation
list.” 19 U.S.C. § 2416(b)(2)(B)(ii). Because the court finds that the USTR has met the
requirements of the second exception, Defendant’s motion to dismiss is granted, and this case is
dismissed.
I. Procedural History
In 1999, the USTR imposed 100 percent ad valorem retaliatory duties on a spectrum of
EC exports to the United States pursuant to 19 U.S.C. § 2416 in response to the EC’s failure to
comply with the World Trade Organization Dispute Settlement Body, which found the EC’s ban
on hormone-treated meat to contravene its trade obligations. See Implementation of WTO
Recommendations Concerning EC – Measures Concerning Meat and Meat Products
(Hormones), 64 Fed. Reg. 14,486-01 (USTR Mar. 25, 1999). Among the products selected for
the retaliatory list were those falling under subheading 9903.02.35, HTSUS, which includes
rusks, toasted bread, and similar products. Soon after the implementation of these duties,
Congress amended § 2416 to require the USTR to periodically modify its list.
Four years later, Plaintiff Gilda Industries, Inc. (“Gilda”), filed protests with the Bureau
of Customs and Border Protection (“Customs”) to contest the classification of the toasted bread
it imported into the United States from Spain and the imposition of the retaliatory duties on its
three related entries. Customs denied the protests. Subsequently, Gilda filed suit in this Court,
requesting reliquidation of its entries, a refund of the duties it paid as a result of its products’
placement on the retaliation list, and removal of its products from the list. The court dismissed
Court No. 03-00203 Page 3
Gilda’s complaint for failure to state a claim upon which relief could be granted. See Gilda
Indus., Inc. v. United States, 28 CIT ___, 353 F. Supp. 2d 1364 (2004) (“Gilda I”). Gilda
appealed.
After affirming most of the holdings in Gilda I, the Court of Appeals for the Federal
Circuit vacated this court’s decision that the USTR had not violated the “review and revise”
requirement of § 2416. Although the USTR claimed that he1 “‘determine[d] that implementation
of a recommendation made pursuant to a dispute settlement proceeding [was] imminent,’” Gilda
Indus., Inc. v. United States, 446 F.3d 1271, 1279 (Fed. Cir. 2006) (quoting 19 U.S.C. §
2416(b)(2)(B)(ii)(I)) (“Gilda II”), the Court of Appeals wrote that “the applicability of the
statutory exception in this case requires consideration of evidence and findings of fact. The
record is insufficient to support the . . . conclusion that [it] applies in this case as a matter of
law.” Id.On remand, the court now must determine as a factual matter whether the USTR has
fulfilled one of the statutory exceptions in § 2416(b)(2)(B)(ii). If the USTR demonstrates that a
statutory exception applies, Gilda will find no remedy in this suit. However, if an exception
does not apply, “the court [will] consider whether it is appropriate to direct the [USTR] to review
and revise the retaliation list.”2 Id. at 1282. This court has jurisdiction under 19 U.S.C. §
1581(i).
1
From 2001 to 2005, Robert B. Zoellick served as the USTR. On June 8, 2006, Susan C.
Schwab assumed the position.
2
Irrespective of the outcome of this case, Gilda “is not entitled to a refund of duties paid
or removal of its imported products from the retaliation list.” Id. at 1283.
Court No. 03-00203 Page 4
II. Discussion
Defendant maintains that “at this time, the USTR and the domestic industry agree that it
is unnecessary to revise the retaliation list” and that, consequently, “the USTR is not required to
revise the retaliation list.”3 Def.’s Resp. Pl.’s Br. Remand Issues 3 (citing 19 U.S.C.
§ 2416(b)(2)(B)(ii)(II)). To support its contention, Defendant has submitted letters from the
president/CEO of the U.S. Meat Export Federation (“USMEF”),4 counsel for the National
Cattlemen’s and Beef Association (“NCBA”),5 and the USTR.6 See Def.’s Resp. Pl.’s Br.
Remand Issues Exs. A & B. The USMEF and its members state that they “consider it
unnecessary at this time to revise the retaliation list in the case of EC Measures Concerning
Meat and Meat Products (Hormones), AB-1997-4.” Def.’s Resp. Pl.’s Br. Remand Issues Ex. A.
NCBA also contends that “it is unnecessary to revise the retaliation list.” Def.’s Resp. Pl.’s Br.
Remand Issues Ex. A. Furthermore, the USTR has determined that because “industry
associations representing substantially all of the United States beef-producing industry . . . do not
believe it is necessary to revise the retaliation list at this time,” pursuant to
§ 2416(b)(2)(B)(ii)(II), he “agree[s] with the affected U.S. industry that it is unnecessary to
3
Although Defendant originally placed the USTR’s imminence determination at center of
its argument, the parties raised both possible exceptions to § 2416(b)(2)(B) during oral
arguments. See Tr. 8–10.
4
USMEF is a non-profit trade association that represents the export interests of the U.S.
beef, pork, and lamb industries.
5
NCBA is the primary association representing U.S. cattle and beef producers.
6
While factual determinations in this case would normally be confined to the
administrative record, because the current record proves inadequate, the court may “‘obtain from
the agency . . . additional explanation of the reasons for the agency decision as may prove
necessary.’” Gilda Indus., Inc. v. United States, 453 F.3d 1362, 1363 (Fed. Cir. 2006) (quoting
Camp v. Pitts, 411 U.S. 138, 142–43 (1973)).
Court No. 03-00203 Page 5
revise the retaliation list” in question. Def.’s Resp. Pl.’s Br. Remand Issues Ex. B.
From the documentation produced, the court concludes that Defendant has met the
requirements of the carousel provision exemption delineated in 19 U.S.C. § 2416(b)(2)(B)(ii)(II).
Further, because the USTR’s determination in this matter receives “substantial deference,” Gilda
Indus., Inc. v. United States, 453 F.3d 1362, 1364 (Fed. Cir. 2006), Plaintiff’s challenge must
fail, as “there is no remedy available to Gilda in this suit.” Gilda II, 446 F.3d at 1282.
Defendant’s motion to dismiss is granted. Judgment will be entered accordingly.
October 10, 2006 /s/ Judith M. Barzilay
Dated:________________________ __________________________
New York, NY Judge
ERRATUM
Please make the following changes to Gilda Indus., Inc. v. United States, Court No. 03-00203,
Slip. Op. 06-149 (CIT Oct. 10, 2006).
Page 3: In the last sentence on the page, replace “19" with “28.”
October 11, 2006