Ceramica Regiomontana, SA v. United States

• Decision Date: 26 January 1983
• Docket Number: Court No. 82-11-01497.
• Citation: 557 F. Supp. 596,5 CIT 23
• Parties: CERAMICA REGIOMONTANA, S.A., Plaintiff, v. UNITED STATES, et al., Defendants, Tile Council of America, Inc., Intervenor.
• Court: U.S. Court of International Trade

557 F. Supp. 596

5 CIT 23

CERAMICA REGIOMONTANA, S.A., Plaintiff, v. UNITED STATES, et al., Defendants, Tile Council of America, Inc., Intervenor.

Court No. 82-11-01497.

United States Court of International Trade.

January 26, 1983.

Stein Shostak Shostak & O'Hara, Washington, D.C. (Irwin P. Altschuler, Steven P. Kersner and David R. Amerine, Washington, D.C., of counsel), for plaintiff.

J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director, Commercial Lit. Branch, and A. David Lafer, Washington, D.C., for defendants.

Howrey & Simon, Washington, D.C. (Kevin P. O'Rourke, David C. Murchison and John F. Bruce, Washington, D.C.), for intervenor.

NEWMAN, Judge:

Introduction

This action raises a first impression question of vital concern in the administration of our countervailing duty law.

Plaintiff seeks an order in the nature of mandamus compelling the International Trade Administration of the United States Department of Commerce ("ITA") to reduce the estimated countervailing duty cash deposit rate on imports of ceramic tile from Mexico.¹ These estimated duties are being collected in accordance with a countervailing duty order and underlying final affirmative countervailing duty determination published by ITA on May 10, 1982 (47 FR 20012).

Defendants and intervenor² have filed cross-motions to dismiss this action on the grounds that the Court lacks subject matter jurisdiction, and that plaintiff has failed to state a claim upon which relief can be granted.

On November 23, 1982, pursuant to plaintiff's request, oral argument was heard in this matter; and, subsequent to the oral argument, the parties submitted additional legal memoranda in connection with the pending motion to dismiss, the last of which was filed with the Court on January 7, 1983.

For the reasons set forth hereinafter, I conclude that the Court has subject matter jurisdiction, but that plaintiff has failed to state a claim upon which relief can be granted.

Background

On May 10, 1982 ITA published notice of its final affirmative countervailing duty determination and countervailing duty order regarding imports of ceramic tile from Mexico (47 FR 20012). ITA's final determination established a single countervailing duty deposit rate applicable to all ceramic tile imported from Mexico at 15.84 percent of the f.o.b. value of the imported merchandise. More, ITA's order directed the Customs Service to require the posting of a cash deposit equal to the estimated countervailing duty specified in the final affirmative countervailing duty determination. The 15.84 percent duty rate included a 10 percent ad valorem deposit rate to offset benefits provided under the Mexican Government's Certificado de Devolucion de Impuesto ("CEDI") program. Two other programs, "FOMEX" and "CEPROFI", were also found by ITA in its final determination as countervailable subsidies equal to .09 percent and 5.75 percent ad valorem, respectively. In short, ITA's countervailing duty order required that estimated countervailing duties be deposited for imports of ceramic tile from Mexico in the amount of 15.84 percent ad valorem — the total of the net subsidies under the CEDI, FOMEX and CEPROFI programs. Customs officers were further directed to continue suspension of liquidation of all entries covering ceramic tile from Mexico.

Subsequent to the publication of ITA's final determination and order, plaintiff filed an action in this Court (Court No. 82-6-00857) challenging ITA's countervailing duty determination, including the manner in which the countervailing duty rate for CEDI was calculated. That suit is currently sub judice.

It appears that on August 25, 1982 the Government of Mexico published an executive order in the Mexican Government's Diario Oficial (Official Gazette) announcing that it was terminating the list of products eligible for CEDI benefits.³ The list included ceramic tile and other products eligible for CEDI benefits.

In light of its August 25th decree, the Mexican Government officially requested ITA, on August 30, 1982, to reduce the 15.84 percent countervailing duty deposit rate applicable to Mexican ceramic tile to 5.84 percent (viz, to eliminate the 10 percent countervailing duty based upon CEDI).

By letter dated September 1, 1982, plaintiff also requested ITA, inter alia, to immediately reduce the countervailing duty rate regarding ceramic tile to eliminate the 10 percent countervailing duty based upon CEDI. Plaintiff applied for this immediate reduction in the countervailing duty deposit requirement on the basis of the similar previous action taken by ITA in "Certain Iron Metal Castings From India; Adjustment of Countervailing Duty Deposit Rate", 46 FR 38398, July 27, 1981. There, ITA reduced the estimated countervailing duty deposit rate respecting an Indian subsidy program, notwithstanding that review under section 751 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1675, had not been completed. In essence, plaintiff requested that ITA take the same interim action on its behalf as was previously taken by ITA in the India case.

On October 25, 1982, ITA denied plaintiff's request, advising that no adjustment would be made to the countervailing duty rate until the completion of the first full administrative review conducted under section 1675. Thereupon, plaintiff filed this action contesting the denial of its request, and now seeks an order of mandamus compelling ITA to "forthwith" adjust the countervailing duty deposit rate for ceramic tile from Mexico by reducing that rate to 5.84 percent ad valorem to reflect the "termination" of CEDI benefits.

Jurisdiction

We first address the jurisdictional issue.

Plaintiff predicates the Court's subject matter jurisdiction over this action on 28 U.S.C. § 1581(i), which so far as pertinent, provides:

(i) In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) 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 imports or tonnage;

(2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue;

(3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or

(4) administration and enforcement with respect to the matters referred to its paragraphs (1)-(3) of this subsection and subsections (a)-(h) of this section.

Plaintiff contends that the foregoing residual provision confers jurisdiction upon the Court to hear the instant case inasmuch as the contested ITA decision not to grant an interim reduction in the estimated countervailing duty deposit rate for ceramic tile from Mexico involves the administration of the United States countervailing duty law, and since such contested decision did not arise out of any proceeding which would result in a determination for which judicial review is provided under 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c). There is no dispute that the Court lacks jurisdiction under sections 1516a and 1581(c).

Defendants and intervenor argue that jurisdiction in the present case under section 1581(i) is precluded by the legislative history of that provision and prior judicial construction. Specifically, defendants and intervenor argue that assertion of jurisdiction under section 1581(i) would circumvent the specific statutory scheme of judicial review for antidumping and countervailing duty cases in section 1516a; that section 1581(i) does not create any new causes of action; that preliminary determinations not specified as reviewable in section 1516a are reviewable only in connection with the final determination which directly or by implication incorporates or supersedes the preliminary administrative action; that here, the final results of administrative review under 19 U.S.C. § 1675 will either supersede or incorporate any questions raised by plaintiff regarding any necessary adjustment of the current countervailing duty rate, and therefore plaintiff can obtain judicial review only after ITA publishes its final results of administrative review; and that section 1581(i) is not an alternative source of jurisdiction in this case since an action commenced pursuant to that provision is not subject to the same standing requirements (28 U.S.C. § 2631), statute of limitations (28 U.S.C. § 2636), burden of proof (28 U.S.C. § 2639) or scope of review (28 U.S.C. § 2640) as an action brought pursuant to 28 U.S.C. 1581(c), which covers determinations specified in section 1516a.

Clearly, ITA's denial of plaintiff's request for an interim adjustment of the estimated countervailing duty deposit rate on ceramic tile from Mexico is not a determination specified in section 1516a; nor is ITA's decision a preliminary or interlocutory administrative action that in the course of proceeding will be directly or by implication incorporated in or superseded by any final determination.

Respecting the jurisdictional issue, the crucial fact is that ITA's decision was not made during any proceeding that would culminate in a determination for which judicial review is provided under 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c). The contested decision in this case was made after the final countervailing duty determination and outside the scope of proceedings under 19 U.S.C. § 1675. Simply put, plaintiff now seeks an immediate pre-annual review adjustment of the estimated countervailing duty rate. Such interim immediate adjustment cannot, of course, be accorded to plaintiff after the completion of a section 1675 review. Therefore, it cannot be said that ITA's decision denying plaintiff's request for an interim adjustment will be subsumed in the section 1675 final determination, which is contestable under section...