893 F.Supp.2d 1347 (CIT 2013), 12-00410, Wuxi Seamless Oil Pipe Co., Ltd. v. United States

Docket Nº12-00410.
Citation893 F.Supp.2d 1347
Opinion JudgeSTANCEU, Judge:
Party NameWUXI SEAMLESS OIL PIPE CO., LTD., Plaintiff, v. UNITED STATES, Defendant. Slip Op. 13-16.
AttorneyRosa S. Jeong and Philippe M. Bruno, Greenberg Traurig, LLP, of Washington, DC, for plaintiff Wuxi Seamless Oil Pipe Co., Ltd. L. Misha Preheim, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With him on the brief ...
Case DateFebruary 01, 2013
CourtUnited States Customs Court

Page 1347

893 F.Supp.2d 1347 (CIT 2013)

WUXI SEAMLESS OIL PIPE CO., LTD., Plaintiff,

v.

UNITED STATES, Defendant.

Slip Op. 13-16.

No. 12-00410.

United States Court of International Trade.

February 1, 2013

Page 1348

Rosa S. Jeong and Philippe M. Bruno, Greenberg Traurig, LLP, of Washington, DC, for plaintiff Wuxi Seamless Oil Pipe Co., Ltd.

L. Misha Preheim, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With him on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Sapna Sharma, Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.

Jeffrey David Gerrish, Nathaniel B. Bolin, Robert E. Lighthizer, and Stephen John Narkin, Skadden, Arps, Slate, Meagher & Flom LLP, of Washington, DC, for proposed defendant-intervenor United States Steel Corporation.

OPINION

STANCEU, Judge:

Plaintiff Wuxi Seamless Oil Pipe Co., Ltd. (" WSP" ) contests a decision of the International Trade Administration, U.S.

Page 1349

Department of Commerce (" Commerce" or the " Department" ) not to rescind, as to WSP, an ongoing periodic administrative review of a countervailing duty order on certain oil country tubular goods (" subject merchandise" ) from the People's Republic of China (" China" or " PRC" ). Compl. ¶ 1 (Dec. 14, 2012), ECF No. 4; Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 77 Fed. Reg. 11,490 (Feb. 27, 2012) (" Initiation Notice " ). WSP, a Chinese producer of subject merchandise, is currently a respondent in the review. Id. ¶ 6. Three motions are before the court. Plaintiff seeks injunctive relief to preclude Commerce from continuing the review with respect to WSP and also moves to advance and consolidate trial on the merits. Mot. for Prelim. Inj. and to Advance and Consolidate Trial on Merits (Dec. 14, 2012), ECF No. 5 (" Pl.'s Mot." ); Mem. of Points & Authorities in Supp. of Mot. for Prelim. Inj. and to Advance and Consolidate Trial on Merits (Dec. 14, 2012), ECF No. 6 (" Pl.'s Mem." ). Defendant moves to dismiss this action under USCIT Rule 12(b)(1) or, in the alternative, under Rule 12(b)(5). Def.'s Mot. to Dismiss and Opp'n to Pl.'s Mot. for Prelim. Inj. and Mot. to Advance and Consolidate Trial on the Merits (Jan. 16, 2013), ECF No. 19. (" Def.'s Mot." ). United States Steel Corporation (" U.S. Steel" ), a domestic producer of oil country tubular goods, moves to intervene. Mot. to Intervene (Jan. 8, 2013), ECF No. 12. Concluding that it lacks subject matter jurisdiction, the court will dismiss this action pursuant to USCIT Rule 12(b)(1).

I. BACKGROUND

Pursuant to Section 702(c)(2) of the Tariff Act of 1930 (" Tariff Act" ), 19 U.S.C. § 1671a(c)(2),1 Commerce initiated a countervailing duty investigation on certain oil country tubular goods from China on May 5, 2009. Certain Oil Country Tubular Goods from the People's Republic of China: Initiation of Countervailing Duty Investigation, 74 Fed. Reg. 20,678 (May 5, 2009). On December 7, 2009, the Department published an affirmative final determination. Certain Oil Country Tubular Goods from the People's Republic of China: Final Affirmative Countervailing Duty Determination, Final Negative Critical Circumstances Determination, 74 Fed. Reg. 64,045 (Dec. 7, 2009). The U.S. International Trade Commission notified Commerce of an affirmative final threat determination on January 13, 2010. See Certain Oil Country Tubular Goods From China, 75 Fed. Reg. 3248, 3249 (Jan. 20, 2010). On January 20, 2010, Commerce published an amendment to its affirmative final determination and a countervailing duty order (the " Order" ), correcting certain ministerial errors and assigning a revised net subsidy rate of 14.95% to WSP and a rate of 13.41% to all others. Certain Oil Country Tubular Goods From the People's Republic of China: Amended Final Affirmative Countervailing Duty Determination and Countervailing Duty Order, 75 Fed. Reg. 3203, 3205.

On January 3, 2012, Commerce published a notice of opportunity to request an administrative review of the Order (" Notice of Opportunity to Request Review" ). Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 77 Fed. Reg. 83 (" Notice of Opportunity to Request Review " ). On February 27, 2012, based on requests for review submitted by WSP and another exporter of subject merchandise, Jiangsu Chengde Steel Tube Share Co., Ltd., Commerce initiated an administrative

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review of the Order for the period of January 1, 2011 through December 31, 2011 (" period of review" or " POR" ).2 Initiation Notice, 77 Fed. Reg. at 11,491. The initiation notice announced that Commerce intended to issue the preliminary results of the review on January 31, 2013. Id. at 11,491; Compl. ¶ 45. On March 7, 2012, the Department issued initial questionnaires to WSP and the Government of the People's Republic of China; WSP submitted a questionnaire response on May 7, 2012. Compl. ¶ 10.

Seeking rescission, WSP submitted a withdrawal of its review request on July 17, 2012, 141 days after initiation and 51 days after the close of the time period provided in a Departmental regulation, 19 C.F.R. § 351.213(d)(1), for withdrawal of a review request, which is 90 days following publication of the notice initiating the review. WSP requested an extension of the 90-day time period as provided in § 351.213(d)(1). Compl. ¶¶ 7, 11, 36 (citation omitted). No party opposed or otherwise commented on WSP's request. Id. ¶ 12.

On October 9, 2012, Commerce rejected WSP's request for a time extension and, accordingly, did not rescind the administrative review as to WSP. Id. ¶¶ 13, 40. The Department's Notice of Opportunity to Request Review had notified the public that " the Department does not intend to extend the 90-day deadline unless the requester demonstrates that an extraordinary circumstance has prevented it from submitting a timely withdrawal request. Determinations by the Department to extend the 90-day deadline will be made on a case-by-case basis." 3 Id. ¶ 32 (citing Notice of Opportunity to Request Review, 77 Fed. Reg. at 84). Commerce repeated this notification in the Notice of Initiation. Id. ¶ 31 (citing Initiation Notice, 77 Fed. Reg. at 11,490). In its submission withdrawing its request for review, WSP had objected that " by changing the regulatory standard for granting extension from ‘ reasonableness' to ‘ extraordinary circumstances,’ the Department in fact repealed and amended 19 C.F.R. § 351.213(d)(1) without the notice-and-comment process required by the [Administrative Procedure Act], 5 U.S.C. § 553." Compl. ¶ 38. Notwithstanding, plaintiff explained that " there were, in fact, extraordinary circumstances that prevented WSP from filing its withdrawal within the 90-day deadline." Id. ¶ 39. Rejecting WSP's position, Commerce stated in its October 9, 2012 decision that " [t]he regulation has not been modified or changed" and that, instead, the new interpretation of the withdrawal regulation " represents a change in the agency's practice...." id. ¶¶ 38, 40. The Department also dismissed WSP's assertion of " extraordinary circumstances," id. ¶ 39, concluding that the circumstances WSP cited " are situations faced by many companies," id. ¶ 41.

WSP submitted a letter on October 22, 2012 alleging additional facts and requesting that Commerce reconsider the October 9, 2012 decision and rescind the review.

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Id. ¶¶ 14, 42 (citation omitted). On November 13, 2012, the Department notified WSP that it was denying the reconsideration request. Id. ¶¶ 14, 43. Commerce reiterated that it did not find WSP's circumstances to be " extraordinary," adding that these circumstances " are not germane to the subject of the Department's retrospective administrative review of Wuxi's sales for the 2011 period of review...." Id. ¶ 43.

In the review, the Department issued three supplemental questionnaires to WSP during the period of November 9 through December 6, 2012. Id. ¶ 15. WSP submitted full responses to these questionnaires. Pl.'s Mem. 12 n. 4.

On December 14, 2012, WSP filed its summons and complaint to initiate this...

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