AD HOC COM. OF FL. PROD. OF GRAY PD. CEMENT v. US, Slip Op. 94-165

• Citation: 866 F. Supp. 576
• Decision Date: 19 October 1994
• Docket Number: Slip Op. 94-165,Court No. 93-02-00102.
• Parties: The AD HOC COMMITTEE OF FLORIDA PRODUCERS OF GRAY PORTLAND CEMENT, Plaintiff, v. The UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

866 F. Supp. 576

The AD HOC COMMITTEE OF FLORIDA PRODUCERS OF GRAY PORTLAND CEMENT, Plaintiff, v. The UNITED STATES, Defendant.

Slip Op. 94-165, Court No. 93-02-00102.

United States Court of International Trade.

October 19, 1994.

King & Spalding, Joseph W. Dorn, Michael P. Mabile, Washington, DC, for plaintiff.

Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Marc E. Montalbine, Washington, DC (Thomas G. Ehr, Import Admin., U.S. Dept. of Commerce, of counsel), for defendant.

OPINION

MUSGRAVE, Judge.

In this action, plaintiff, The Ad Hoc Committee of Florida Producers of Gray Portland Cement ("Ad Hoc"), challenges certain aspects of the September 21, 1992 and December 20, 1992 final determinations of foreign market values ("FMV") made by the Department of Commerce, International Trade Administration ("ITA" the "Department" or "Commerce"), pursuant to an agreement to suspend an antidumping investigation of gray portland cement and cement clinker from Venezuela.

Background

On May 21, 1991, Ad Hoc filed an antidumping petition on behalf of the United States industry producing gray portland cement and clinker. Commerce initiated an antidumping duty investigation on June 14, 1991. Notice of Initiation of Antidumping Duty Investigation: Gray Portland Cement and Clinker From Venezuela, 56 Fed.Reg. 27,496 (1991). On November 4, 1991, after receiving questionnaire responses from Venezolana de Cementos, S.A.C.A. ("Vencemos") and Cementos Caribe, C.A. ("Caribe"), Commerce published its preliminary determination that gray portland cement and clinker from Venezuela were being sold at less than fair value in the United States. Notice of Preliminary Determination of Sales at Less Than Fair Value: Gray Portland Cement and Clinker From Venezuela, 56 Fed.Reg. 56,390 (1991).

On December 23, 1991, Commerce and respondents Vencemos and Caribe initiated a proposed agreement to suspend the antidumping investigation pursuant to 19 U.S.C. § 1673c(b)(2).¹ The proposed agreement required the respondents to revise their prices to eliminate sales at less than fair value. In addition, the proposed agreement described the administrative process for monitoring the respondents' compliance with the requirement to eliminate sales at less than fair value. Under this process, the FMV was to be the constructed value of the merchandise, as defined in 19 U.S.C. § 1677b(e). Vencemos and Caribe were required to submit constructed value data to Commerce on a quarterly basis using a format and methodology prescribed by Commerce. Based on the information submitted by respondents, Commerce would calculate FMVs that would provide the benchmark for respondents' prices on future sales to the United States during specified periods.

Pursuant to the suspension agreement, Commerce suspended the antidumping duty investigation and published notice of the suspension in the Federal Register on February 27, 1992. Gray Portland Cement and Cement Clinker From Venezuela; Suspension of Investigation, 57 Fed.Reg. 6706 (1992) (hereinafter "Notice of Suspension").

Paragraph E of the suspension agreement provides, beginning July 1, 1992, for release to the "domestic parties" of the quarterly financial information received from the signatories as well as "the results and the methodology of Commerce's calculations of its foreign market value." Notice of Suspension, at 6708. The suspension agreement also permits parties to submit written comments to Commerce following the release of the FMV calculation and, once during each calendar year, "to request a hearing on issues raised during the proceeding." Id.

On February 28, 1992, Commerce issued its determination of final FMVs pursuant to paragraph C.2. of the suspension agreement, based on the respondents' submissions of constructed value data for April 1-September 30, 1991.² On July 20, 1992, Commerce issued its determination of final FMVs for the January 1-March 30, 1992 period pursuant to paragraph C.3. of the suspension agreement.³

Ad Hoc filed separate actions before this Court to challenge the FMVs issued on February 28, 1992 and July 20, 1992. The Ad Hoc Committee Of Florida Producers Of Gray Portland Cement v. United States, Court No. 92-03-00196; The Ad Hoc Committee Of Florida Producers Of Gray Portland Cement v. United States, Court No. 92-08-00560. Commerce filed motions to dismiss each of these actions, asserting that the quarterly calculations were not final determinations reviewable by the Court. Ad Hoc and Commerce stipulated to the dismissal of those actions on December 8, 1992.

On February 17, 1993, Ad Hoc again filed a complaint challenging the September 21, 1992 and the December 20, 1992 calculations made pursuant to paragraph C.4. of the suspension agreement.⁴ In its complaint, Ad Hoc requests that the Court require Commerce to recalculate the FMVs used for the quarterly periods beginning October 1, 1992 and January 1, 1993. Plaintiffs Complaint, at paragraph 22 & 27. As with Ad Hoc's previous complaints, its current complaint alleges jurisdiction based upon 28 U.S.C. § 1581(i).

Also on February 17, 1993, Commerce published notice in the Federal Register of the opportunity to request an administrative review with respect to the suspension agreement concerning gray portland cement and clinker from Venezuela. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 58 Fed.Reg. 8739 (Feb. 17, 1993). On February 25, 1993, Ad Hoc requested an administrative review of the suspension agreement.

Discussion

Commerce argues that these calculations are not final reviewable determinations and that Ad Hoc's request is premature. Defendant's Memorandum in Support of Motion to Dismiss, at 7. Commerce argues that the quarterly calculations of FMV pursuant to the suspension agreement are merely interim decisions which would be superseded by an administrative review under 19 U.S.C. § 1675(a). Thus, Commerce asserts that 28 U.S.C. § 1581(i) does not give this Court jurisdiction to grant Ad Hoc the relief it requests. Id. at 13.

Ad Hoc argues that Commerce's September 21 and December 20 FMV determinations are final agency actions binding upon all parties. Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss, at 12 et seq. Ad Hoc argues that these FMV determinations are not among those determinations specifically reviewable under 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c). It asserts that the administrative monitoring procedure under which those determinations were made was adopted by Commerce in the exercise of its general authority to enforce the suspension agreement. It was not mandated by any provision of law, and it is wholly independent of the administrative review process established by 19 U.S.C. § 1675(a) for determining compliance with suspension agreements. Id. at 19.

As stated above, Ad Hoc argues that this Court has jurisdiction via 28 U.S.C. § 1581(i).⁵ 28 U.S.C. § 1581(i) jurisdiction is appropriate only when no other remedy is available or when remedies that may be available are shown to be manifestly inadequate. See e.g. Conoco, Inc. v. United States Foreign-Trade Zones Bd., 18 F.3d 1581 (Fed.Cir.1994); Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed.Cir. 1992).

This Court has found 28 U.S.C. § 1581(i) jurisdiction in certain situations where administrative remedies necessary to sustain jurisdiction under 28 U.S.C. § 1581(c) had not been completed. The Court has found jurisdiction present over pending administrative reviews alleged to be invalid where 28 U.S.C. § 1581(c) jurisdiction could be unavailable after each succeeding periodic review. Carnation Enter. Pvt., Ltd. v. United States Dep't of Commerce, 13 CIT 604, 612, 719 F.Supp. 1084, 1091 (1989). The Court has also found jurisdiction to preclude Commerce from conducting unlawful administrative reviews because appropriate remedies would be inadequate by the time 28 U.S.C. § 1581(c) jurisdiction attached. Jia Farn Manufacturing Co. v. Secretary of Dep't of Commerce, 17 CIT ___, ___, 817 F.Supp. 969, 971-72 (1993); Asociacion Colombiana de Exportadores de Flores v. United States, 13 CIT 584, 585-88, 717 F.Supp. 847, 849-51 (1989). Thus, in the case of actions potentially reviewable under 28 U.S.C. § 1581(c), 28 U.S.C. § 1581(i) review is appropriate where eventual standing may be speculative, or the opportunity for full relief would be lost by awaiting the final determination. See Techsnabexport, Ltd. v. United States, 16 CIT 420, 423-24, 795 F.Supp. 428, 432-34 (1992); Nissan Motor Corp. In U.S.A. v. United States, 10 CIT 820, 822, 651 F.Supp. 1450, 1453 (1986); see also Nakajima All Co. Ltd. v. United States, 12 CIT 585, 592, 691 F.Supp. 358, 364 (1988) (requiring Commerce to complete & publish final results in an annual § 751 review); UST, Inc. v. United States, 10 CIT 648, 651, 648 F.Supp. 1, 4 (1986) ("it is not too difficult to imagine circumstances where a possible recalcitrant ITA might determine never to complete a section 751 review simply to escape judicial scrutiny"), aff'd, 831 F.2d 1028 (Fed.Cir.1987).⁶

As the cases above demonstrate, this case manifests precisely the sort of circumstance to which 28 U.S.C. § 1581(i) applies. The challenged FMV determinations are not part of an administrative review or any other Commerce proceeding that will ultimately lead to a determination reviewable under 19 U.S.C. § 1516a(a)(2)(B)(iii). Moreover, the FMV determinations are final and binding on all parties with respect to the FMVs for the periods covered by the determinations. The FMV determinations are not subject to any further action to be considered by Commerce under the suspension agreement. There is no provision in the suspension agreement which affects the finality of the FMV determinations. Paragraph D.3. of the suspension agreement states only...