Ipsco, Inc. v. US, Court No. 86-07-00853.

• Decision Date: 18 April 1989
• Docket Number: Court No. 86-07-00853.
• Citation: 13 CIT 335,710 F. Supp. 1581
• Parties: IPSCO, INC. and Ipsco Steel, Inc., Plaintiffs, v. The UNITED STATES, Defendant, and Lone Star Steel Co., Defendant-Intervenor.
• Court: U.S. Court of International Trade

710 F. Supp. 1581

13 CIT 335

IPSCO, INC. and Ipsco Steel, Inc., Plaintiffs, v. The UNITED STATES, Defendant and Lone Star Steel Co., Defendant-Intervenor.

Court No. 86-07-00853.

United States Court of International Trade.

April 18, 1989.

Barnes, Richardson & Colburn, Rufus E. Jarman, Jr., New York City, for plaintiffs.

John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Platte B. Moring, III, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendant.

Dewey, Ballantine, Bushby, Palmer & Wood, Michael H. Stein, Washington, D.C., for defendant-intervenor.

OPINION

RESTANI, Judge:

On April 22, 1986, the United States Department of Commerce, International Trade Administration (ITA) issued a final affirmative countervailing duty determination in Oil Country Tubular Goods from Canada, 51 Fed.Reg. 15,037 (Apr. 22, 1986). Since then, this court has twice remanded ITA's Determination because ITA, in choosing a period over which to allocate the bounty or grant received by Ipsco, failed to use data which was sufficiently particularized to the country and company under investigation or was otherwise substantiated by the record under review. In its opinion of November 23, 1988, this court remanded this case to ITA with instructions that ITA "calculate an allocation period which will accurately reflect the commercial and competitive benefit received by the plaintiffs in this case." Ipsco, Inc. v. United States, 12 CIT ___, 701 F.Supp. 236, 241 (1988).

On February 16, 1989, ITA issued its Second Remand Determination. In that determination, ITA calculated a 21 year allocation period which ITA asserts is based on data taken from Ipsco's 1984 Annual Report. ITA states that it "arrived at the 21-year average depreciation period by subtracting from the total value of Ipsco's replaceable physical assets the value of construction in progress (which was not depreciated), and then divided this result by the net depreciation charged during the year." Second Remand Determination at 4.¹ Plaintiffs object to ITA's use of the 21 year period asserting that ITA improperly allocated the benefit of the subsidy or grant received to all of Ipsco's replaceable capital assets, rather than limiting the calculation to those assets which Ipsco purchased with the money it received.

DISCUSSION

In reviewing ITA's determination that a 21 year allocation period is appropriate, this court must uphold ITA's decision unless it is unsupported by substantial evidence on the record, or otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(1)(B) (1982). This court may not substitute its own judgment for that of ITA, even though the court could have justifiably come to a different conclusion had it had the burden of reviewing the matter de novo. American Lamb Co. v. United States, 785 F.2d 994, 1001 (Fed.Cir. 1986); American Spring Wire Corp. v. United States, 8 CIT 20, 22, 590 F.Supp. 1273, 1276 (1984), aff'd sub nom. Armco, Inc. v. United States, 760 F.2d 249 (Fed. Cir.1985).

In the present case ITA rejected plaintiffs' proffered methodology of allocating subsidy benefits in accordance with a depreciation schedule which accounts for only those assets which are actually purchased with the subsidy received because such approach is "inconsistent with the Department's practice of allocating grants over a period that ... reflects the average economic useful life of all replaceable physical assets, including buildings." Remand Determination at 5.² In its previous opinion the court instructed ITA to apply a methodology which utilizes information of record in this case. That ITA choose to allocate the benefits derived from subsidies received by Ipsco over a period which reflects the economic useful life of all of Ipsco's replaceable physical assets, rather than only those assets which were purchased with the grants received, cannot be said to be error based on the record in this case.

As noted by ITA in its Remand Determination, a grant affords a company both immediate and long term benefits. See Remand Determination at 2. One benefit which a company may derive from such a grant is that it may be able to purchase much needed capital equipment which it could not otherwise acquire. But income received on day one, may also benefit a company's general operations. For example, funds which might have been expended on certain capital assets might...