Sacilor, Acieries et Laminoirs de Lorraine v. US

• Decision Date: 21 June 1985
• Docket Number: Court No. 85-5-00664,85-5-00669.
• Citation: 613 F. Supp. 364,9 CIT 280
• Parties: SACILOR, ACIERIES ET LAMINOIRS DE LORRAINE, et al., Plaintiffs, v. The UNITED STATES, et al., Defendants. VALLOUREC, Plaintiff, v. The UNITED STATES, et al., Defendants.
• Court: U.S. Court of International Trade

613 F. Supp. 364

9 CIT 280

SACILOR, ACIERIES ET LAMINOIRS DE LORRAINE, et al., Plaintiffs, v. The UNITED STATES, et al., Defendants.

VALLOUREC, Plaintiff, v. The UNITED STATES, et al., Defendants.

Court Nos. 85-5-00664, 85-5-00669.

United States Court of International Trade.

June 21, 1985.

Donovan, Leisure, Newton & Irvine, Pierre F. de Ravel d'Esclapon, Thomas R. Trowbridge, III, and Melvin S. Schwechter, New York City, for plaintiffs.

Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C., Velta A. Melnbrencis, Civ. Div., U.S. Dept. of Justice, New York City, for defendants.

Stewart & Stewart, Washington, D.C. (Eugene L. Stewart, Washington, D.C., on brief), for amicus curiae Bethlehem Steel Corp.

Opinion and Order

RESTANI, Judge:

Plaintiffs, European manufacturers of made-to-order steel pipes for crude oil pipelines, filed these actions to challenge a Department of Commerce (DOC) determination. The determination denied a request by the European Economic Community (EEC) to allow the importation into the United States of additional quantities of pipe beyond the level specified in an agreement between the EEC and the United States. Plaintiffs moved for expedited discovery and briefing. Defendant United States government opposed the motion and requested briefing on several threshold questions including jurisdiction, standing, justiciability, and judicial review. After briefing and oral argument, the court has determined that plaintiffs failed to state a cause of action under the substantive law and that judicial review of the findings of the DOC is unavailable.

I. Background

In September, 1984, plaintiffs executed final contracts with the All American Pipeline Company to supply specially made pipe for a project designed to transport crude oil from California to the Gulf Coast. Plaintiffs were selected as suppliers after an open bidding process. On October 30, 1984, the Trade and Tariff Act of 1984, Pub.Law 98-573, 98 Stat. 2948 was enacted. Included as Title VIII of the 1984 Trade and Tariff Act was the Steel Import Stabilization Act (SISA), 19 U.S.C.A. § 2253 note (West 1980 & Supp.1985). Section 805(b) of SISA grants power to the Secretary of Commerce (Secretary) to insure that the quantities of imported pipes and tubes remain in accordance with an October 1982 agreement between the EEC and the United States, "including any modification, clarification, extension or successor agreement...."¹ Also contained within § 805(b) was a provision which permits the Secretary to allow the importation of additional quantities of certain products after the Secretary finds the existence of a short supply of the product in the United States.²

On January 10, 1985, by way of letters, the EEC and the United States entered into a clarifying agreement concerning steel imports (the Arrangement). Under the Arrangement the EEC would restrain exports to, or destined for consumption in the United States of certain steel pipes and tubes to a level of 7.6% of U.S. apparent consumption for the years 1985 and 1986. For oil country tubular goods the limit was 10% of U.S. apparent consumption. Article 8 of the Arrangement, however, provides that pipe and tube exports above the specified limits will be accepted where a shortage of supply exists.³

Pursuant to the Arrangement, the EEC submitted a request to the DOC for consultation and a short supply exemption for the pipe required by the All American Pipeline project. Asking for priority treatment, the EEC claimed that the requisite product was not sufficiently available in the United States.

The DOC announced that it would examine the short supply exemption request and invited comments by February 15, 1985. 50 Fed.Reg. 4719 (1985). By letters dated March 28, 1985, the DOC informed both the EEC and the president of All American Pipeline Company that the pipe subject to the EEC's request could be supplied by three firms in the United States which had unused capacity of approximately one million tons, several times the amount of pipe covered by the requests. The DOC noted that its determination was based on responses to questionnaires sent to all U.S. producers, responses to the notice in the Federal Register, and consultations with All American Pipeline officials and their private consultant.

On May 13, 1985, manufacturers Sacilor and Bergrohr-Herne commenced an action in this court claiming that the DOC's March 28, 1985 determination was arbitrary, capricious, an abuse of discretion, and a denial of plaintiffs' due process rights. Plaintiff Vallourec filed a companion case on the same grounds.

As of June 18, 1985, it appears that the EEC and the United States have resolved their differences regarding pipes and tubes for the All American Pipeline. Defendants assert that this action is now moot. Plaintiffs have indicated that the amount approved for importation is less than that sought by plaintiffs, and therefore this action is not moot. This action remains a live controversy between the parties before the court.

II. Jurisdiction

Jurisdiction is predicated on 28 U.S.C. § 1581(i)(4) (1982) as it relates to 28 U.S.C. § 1581(i)(3) (1982).⁴ These cases involve the administration of a law, SISA, imposing quantitative restrictions on certain steel imports. Defendant asserts that plaintiffs' claims rest only on the Arrangement, which it asserts does not have the force of law. It appears that executive international agreements, whether approved prior or subsequent to execution, have the force of law. Cf. Weinberger v. Rossi, 456 U.S. 25, 102 S.Ct. 1510, 71 L.Ed.2d 715 (1982); B. Altman & Co. v. United States, 224 U.S. 583, 32 S.Ct. 593, 56 L.Ed. 894 (1912). In any case, plaintiffs also claim that their actions arise under SISA because it incorporates various parts of the Arrangement. This court's task then is to determine whether SISA gives plaintiffs the relief they seek, or whether Article 8 of the Arrangement in some manner confers rights on the plaintiffs. Under § 1581(i) the court has power to make this inquiry. Furthermore, because plaintiffs have no reasonably available remedy under § 1581(a), failure to exhaust administrative remedies will not bar suit. See American Association of Exporters Importers-Textile and Apparel Group v. United States, 751 F.2d 1239, 1244-46 (Fed.Cir.1985) (hereafter AAEI); see also American Institute for Imported Steel, Inc. v. United States, 8 CIT ___, 600 F.Supp. 204, 208 (1984).

III. Enforceable Private Rights

Section 802 of SISA states that the purpose of the act is to grant the President authority to enforce bilateral steel agreements and to condition the continuation of his authority on modernization of domestic steel production facilities. When referring in SISA to the Secretary's duties regarding the short supply exception to the quota levels set in the bilateral agreements, Congress used permissive language. Section 805(b)(3) states that the Secretary may permit importation of additional quantities of steel products into the United States. SISA contains no mandatory language regarding short supply except perhaps for a provision prohibiting a short supply determination based on unavailability of domestic steel at below cost prices. This limit on the short supply exemption is not involved here.

Although Article 8 of the Arrangement is written in mandatory terms, its terms bind only the signatory parties, the United States and the EEC. It is only the EEC which can request relief under Article 8 of the Arrangement. For an international agreement to be enforceable by private parties, either the agreement itself or the implementing legislation must contain language providing for the determination of private rights. Dreyfus v. VonFinck, 534 F.2d 24, 29-30 (2nd Cir.1976); 13B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3563 (2nd ed. 1984). Unlike the case of People of Saipan v. United States, 502 F.2d 90 (9th Cir.1974), cert. denied, 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975) (United Nations Trusteeship Agreement created substantive rights enforceable by plaintiffs), there is no language in either Article 8 of the Arrangement or § 805(b)(3) of SISA which indicates an intention to establish direct, affirmative, and judicially enforceable rights for private parties in the position of plaintiffs.

The legislative history of SISA also fails to support plaintiffs. It states that the short supply provision is "designed to protect domestic purchasers of steel products. ..." H.R.Rep. No. 1156, 98th Cong., 2d Sess. 200, reprinted in 1984 U.S.Code Cong. & Ad.News 4910, 5220, 5317. There is no mention of guaranteeing persons in the position of plaintiffs any access to United States markets.

IV. Standing

The substantive laws of the United States provide plaintiffs no specific rights of action in this situation, but because the court has subject matter jurisdiction, review may lie under the Administrative Procedures Act (APA), 5 U.S.C. §§ 701-706 (1982). See Chrysler Corp. v. Brown, 441 U.S. 281, 317, 99 S.Ct. 1705, 1725, 60 L.Ed.2d 208 (1979); Audubon Society v. Lee, 742 F.2d 901, 911 n. 18, reh'g denied, 750 F.2d 69 (5th Cir.1984); McCartin v. Norton, 674 F.2d 1317, 1320 (9th Cir.1982); Glacier Park Foundation v. Watt, 663 F.2d 882, 885 (9th Cir.1981). Under 28 U.S.C. § 2631(i) (1982) plaintiffs may commence actions in this court if they are "adversely affected or aggrieved by agency action within the meaning of section 702 of title 5." "In order to assert a cognizable claim — or `standing to sue' — under the APA, a plaintiff must demonstrate that it has suffered or will suffer `injury in fact' sufficient to establish constitutional Article III standing and that the alleged injury to an interest is `arguably within the zone of interests protected or regulated' by the statute that has allegedly been violated." Dialysis Centers, Ltd. v. Schweiker, 657 F.2d 135,...