Hylsa, S.A. de C.V. v. U.S.

• Decision Date: 20 February 1997
• Docket Number: Slip Op. 97-26.,No. 97-01-00132.,97-01-00132.
• Citation: 960 F.Supp. 320
• Parties: HYLSA, S.A. de C.V., Plaintiff, and TUBERIA NATIONAL, S.A. de C.V., Plaintiff-Intervenor, v. The UNITED STATES, Defendant, and Wheatland Tube Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

960 F.Supp. 320

HYLSA, S.A. de C.V., Plaintiff, and TUBERIA NATIONAL, S.A. de C.V., Plaintiff-Intervenor, v. The UNITED STATES, Defendant, and Wheatland Tube Company, Defendant-Intervenor.

Slip Op. 97-26.

No. 97-01-00132.

United States Court of International Trade.

February 20, 1997.

Shearman & Sterling (Jeffrey M. Winton), Washington, DC, for plaintiff.

White & Case (David E. Bond and Walter J. Spak), Washington, DC, for plaintiff-intervenor.

Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Randi-Sue Rimerman), Mark Barnett, Carlos Garcia, and David Ross, Office of the Chief Counsel for Import Administration, Department of Commerce, Washington, DC, for defendant.

Schagrin Associates (Roger B. Schagrin), Washington, DC, for defendant-intervenor.

OPINION

RESTANI, Judge:

This matter is before the court on plaintiff's motion for preliminary injunction and defendant's motion to dismiss. This action was commenced on January 27, 1997, by Hylsa, S.A. de C.V. ("Hylsa"), a producer in Mexico of a product excluded from the scope of an antidumping order. The product is now the subject of an anticircumvention proceeding under the antidumping law. A previously issued order temporarily restraining the proceedings has been dissolved.

FACTS

On October 21, 1991, the United States Department of Commerce ("Commerce") initiated antidumping duty investigations covering circular welded non-alloy steel pipe ("standard pipe") from Brazil, Korea, Mexico, Romania, Taiwan and Venezuela. See Circular Welded Non-Alloy Steel Pipe From Brazil, the Republic of Korea, Mexico, Romania, Taiwan, and Venezuela, 56 Fed.Reg. 52,528, 52,528 (Dep't Comm.1991) (initiation of antidumping duty investigation). The investigations resulted in the publication of antidumping duty orders covering standard pipe from Brazil, Korea, Mexico, and Venezuela. See Certain Circular Welded Non-Alloy Steel Pipe from Brazil, the Republic of Korea (Korea), Mexico, and Venezuela, and Certain Circular Welded Non-Alloy Steel Pipe from Korea, 57 Fed.Reg. 49,453, 49,454 (Dep't Comm.1992) (notice of antidumping duty orders and amendment to final determ. of LTFV sales from Korea).

On April 23, 1993, the domestic producers who were the petitioners in Commerce's original antidumping investigations filed petitions with Commerce claiming that exports from Korea, Mexico, and Brazil of API 5L line pipe and dual-certified pipe were circumventing the antidumping duty orders on standard pipe. See Certain Circular Welded Non-Alloy Steel Pipe from Mexico, 62 Fed.Reg. 1429, 1429 (Dep't Comm.1997)(initiation of anticircumvention inquiry on antidumping duty order)[hereinafter "Initiation of Anti-circumvention Inquiry"]. Petitioners alleged that exporters of standard pipe were circumventing the antidumping duty orders by having pipe intended for use as standard pipe certified as line pipe or as both line and standard pipe. Id. Petitioners further alleged that this more stringently certified pipe was, in fact, being used in standard pipe applications. Id. Petitioners contended that such actions constitute a "minor alteration of merchandise" within the meaning of section 781(c) of the Tariff Act. Id.

After examining petitioners' allegations, Commerce did not initiate an anticircumvention inquiry pursuant to 19 C.F.R. § 353.29(g) (1995). Id. Instead, it initiated a scope inquiry pursuant to 19 C.F.R. § 353.29(i) to determine whether API 5L line pipe and dual-certified pipe, when actually used in standard pipe applications, is within the scope of the antidumping duty orders covering standard pipe. Id. Petitioners did not object to conducting the proceeding as a scope inquiry.

On April 12, 1996, Wheatland Tube Company ("Wheatland"), one of the original petitioners, filed a suit challenging the final scope determination. Wheatland Tube Co. v. United States, No. 96-04-01078 (Ct. Int'l Trade filed Apr. 12, 1996). Wheatland challenged both Commerce's conclusion that line pipe and dual-certified pipe were not within the scope of the antidumping duty orders on standard pipe, as well as Commerce's failure to conduct an anti-circumvention inquiry pursuant to 19 U.S.C. § 1677j(c) (1994). See Initiation of Anticircumvention Inquiry, 62 Fed.Reg. at 1429.

On July 12, 1996, Commerce requested a voluntary remand in Wheatland in order to reconsider Wheatland's anticircumvention petition of April 23, 1993. The request for remand was contested. In September 1996, Commerce responded to an earlier Congressional inquiry, noting its request for remand and indicating it would act on the request for a circumvention inquiry as soon as possible.¹ On October 9, 1996, the court denied Commerce's request for remand, ruling that: "Commerce set forth its reason; no objection was made to treating the request as one for a scope determination; and it would be a waste of time and improper to order a remand until error has been demonstrated." Wheatland Tube Co. v. United States, No. 96-04-01078 (Ct. Int'l Trade Oct. 9, 1996) (order denying defendant's motion to remand). Also on October 9, 1996, in response to a separate motion, the court dismissed all parts of the complaint concerning Wheatland's appeal of Commerce's scope determination as it related to the antidumping duty order on standard pipe from Mexico. Wheatland Tube Co. v. United States, No. 96-04-01078 (Ct. Int'l Trade Oct. 9, 1996) (order granting plaintiff's voluntary motion to dismiss).

On January 10, 1997, Commerce published a notice that it was initiating an anticircumvention inquiry, pursuant to section 781(c) of the Tariff Act, to determine whether imports from Mexico of line pipe or dual-certified pipe were circumventing the antidumping duty order on standard pipe from Mexico. See Initiation of Anticircumvention Inquiry, 62 Fed.Reg. at 1430.²

In this notice, Commerce noted that the regulations contained in 19 C.F.R. § 353.29(b) govern its initiation of an anticircumvention inquiry upon application by an interested party. This section provides that an application for an anticircumvention inquiry must contain: (1) a detailed description of the product, including technical characteristics and uses of the product, and its current United States Tariff Classification number; and (2) a statement of the interested party's position as to whether the product is within the scope of an antidumping order, including (i) a summary of the reasons for this conclusion, (ii) citations to any applicable statutory authority, and (iii) attachment of any factual support for this position. 19 C.F.R. § 353.29(b).

Commerce explained that because the petition contained the information required by 19 C.F.R. § 353.29(b) it evaluated the application to determine whether a formal inquiry was warranted. Initiation of Anticircumvention Inquiry, 62 Fed.Reg. at 1429-30. That evaluation is set forth in a December 20, 1996 memorandum from Joseph A. Spetrini to Robert S. LaRussa. (Memorandum from Joseph A. Spetrini, Deputy Assistant Secretary Enforcement Group III, on Certain Circular Welded Non-Alloy Steel Pipe from Mexico, to Robert LaRussa 5 (Dec. 20, 1995); Pl.'s., attachment 2) [hereinafter "Spetrini Memorandum"]. Commerce concluded that a formal circumvention inquiry was warranted because:

First, the record of our earlier scope proceeding does not explain adequately why `a scope inquiry pursuant to 19 CFR § 353.29(i) was the appropriate avenue for addressing the issues raised by petitioners.' (see Final Negative Determination of Scope Inquiry, 61 FR 11,608)[.] Second, while we understand that there is an argument that our negative scope determination of March 1996 forecloses any further inquiry into the status of line pipe and dual-certified pipe, we believe that in this instance the law is unsettled concerning the precise relationship between a scope inquiry and an anticircumvention inquiry. Finally, we believe a formal inquiry is warranted because petitioners have produced sufficient allegations of circumvention to warrant further inquiry into whether imports of line pipe and dual-certified pipe are circumventing the antidumping duty order on standard pipe from Mexico.³

Spetrini Memorandum at 5.

Thus, Commerce did not decide prior to initiating the inquiry whether it had the statutory authority to conduct the anticircumvention inquiry after the final scope determination had issued excluding the merchandise. In accordance with 19 C.F.R. § 353.29(j), however, Commerce did not instruct the United States Customs Service to suspend liquidation and require a cash deposit of estimated duties on the subject merchandise. Initiation of Anticircumvention Inquiry, 62 Fed.Reg. at 1430. Commerce also stated its intention to issue its final determination within 300 days of the initiation of inquiry. Id. At oral argument, Commerce advised that it was in the process of preparing questionnaires when it was restrained. Defendant and defendant-intervenor oppose the motion for preliminary injunction and seek dismissal of the action for lack of jurisdiction.

STATUTORY BACKGROUND

Defendant seeks dismissal of this action for lack of jurisdiction. Two provisions within 28 U.S.C. § 1581 (1994) have relevance. 28 U.S.C. § 1581(c) reads as follows:

(c) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced under section 516A of the Tariff Act of 1930.⁴

28 U.S.C. § 1581(c). Section 1581(i)⁵ of Title 28 reads as follows:

(i) In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section and subject to the exception set forth in subsection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for—

(1) revenue from...