National Ass'n of Mirror Mfrs. v. US, Court No. 87-04-00592.

• Decision Date: 15 September 1987
• Docket Number: Court No. 87-04-00592.
• Parties: The NATIONAL ASSOCIATION OF MIRROR MANUFACTURERS, Plaintiff, v. UNITED STATES, Defendant, Glaverbel, S.A., Defendant-Intervenor.
• Court: U.S. Court of International Trade

670 F. Supp. 1013

11 CIT 648

The NATIONAL ASSOCIATION OF MIRROR MANUFACTURERS, Plaintiff, v. UNITED STATES, Defendant, Glaverbel, S.A., Defendant-Intervenor.

Court No. 87-04-00592.

United States Court of International Trade.

September 15, 1987.

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart and James R. Cannon, Jr., Washington, D.C., for plaintiff.

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Dept. of Justice, Jeanne E. Davidson; Paul C. Aiken, Office of the Deputy Chief Counsel for Intern. Trade, Dept. of Commerce, Washington, D.C., for defendant.

Ulmer, Berne, Laronge, Glickman & Curtis, Morton L. Stone and Ronald H. Isroff, Cleveland, Ohio, for defendant-intervenor.

DiCARLO, Judge:

The National Association of Mirror Manufacturers, plaintiff, and the United States, defendant, each move to strike the second and third sentences of paragraph 12 and the third request for relief contained in the answer of defendant-intervenor Glaverbel, S.A. Plaintiff and defendant argue that these portions of defendant-intervenor's answer amount to an untimely cross-claim over which this Court does not have jurisdiction.

Since the claim raised by defendant-intervenor in its answer does not comport with the time limitations imposed by section 516A(a) of the Tariff Act of 1930 (Act), as amended, 19 U.S.C. § 1516a(a) (Supp. III 1985), the Court finds it does not have jurisdiction to consider such claim. The Court grants the motions to strike.

The United States Department of Commerce, International Trade Administration (Commerce) published in the Federal Register on March 12, 1987 an amended final affirmative determination that unfinished mirrors from Belgium were being sold in the United States at less than fair value. See Amendment to Final Determination of Sales at Less Than Fair Value; Mirrors in Stock Sheet and Lehr End Sizes From Belgium, 52 Fed.Reg. 7634 (March 12, 1987). On March 19, 1987, the United States International Trade Commission (Commission) published its determination that the mirror industry in the United States is not materially injured or threatened with material injury, and the establishment of an industry in the United States is not materially retarded, by reason of imports of certain unfinished mirrors from Belgium. See Certain Unfinished Mirrors from Belgium, 52 Fed.Reg. 8656 (March 19, 1987).

Defendant-intervenor did not challenge either of these determinations, but moved on June 2, 1987 to intervene as a matter of right in the timely action brought by plaintiff as an interested domestic party challenging both determinations. In an answer filed simultaneously with the motion to intervene, defendant-intervenor claims: "The low dumping margin of 0.97% arrived at by the ITA Commerce in its final determination is de minimis under law and under the facts and circumstances of this case. Therefore, the ITA should have arrived at a final negative determination of dumping with respect to unfinished mirrors produced by Defendant-Intervenor Glaverbel and exported to the United States." Defendant-intervenor's answer, page 4, paragraph 12.

Plaintiff and defendant argue that this claim made by defendant-intervenor in its answer disputes rather than supports the legal and factual basis of Commerce's final determination and therefore a motion to strike should be granted because the claim is beyond the statutory time limits for bringing such an action provided in section 516A(a) of the Act, as amended, 19 U.S.C. § 1516a(a).

According to defendant-intervenor, it would be a waste of time and resources for a foreign interested party to appeal an unfavorable, affirmative Commerce determination after a favorable, negative Commission determination, quoting from Bethlehem Steel Corp. v. United States, 742 F.2d 1405, 1410 (Fed.Cir.1984):

"After the notice's issuance, there still remained one last requirement before a countervailing duty order could issue — the ITC's final injury determination. If the ITC had found no injury, the investigation would have been terminated, and no countervailing duty order would have been promulgated. The decision below requires, however, an interested domestic party to appeal from the ITA determination even though shortly thereafter the whole question of duty assessment could become moot because the ITC found no domestic injury whatever. It is highly unlikely that Congress would call for such a potentially useless appeal."

In Bethlehem Steel, the court found that the contested portion of an affirmative determination was not itself a negative determination that should be appealed 30 days after issuance pursuant to 19 U.S.C. § 1516a(a)(2)(A)(i) & B(ii) (1982) (amended Supp. III 1985), but rather was a negative aspect of an affirmative determination timely challenged 30 days after issuance of the countervailing duty order pursuant to 19 U.S.C. § 1516a(a)(2)(A)(ii) & B(i) (1982) (amended Supp. III 1985). Although the Bethlehem Steel Court confronted the question of what type of action was brought, the court accepted that the action however characterized must be brought within the jurisdictional time limits prescribed by Congress.

Upon consideration of the present motions, the Court finds that the claim raised by defendant-intervenor in its answer is a challenge to Commerce's final affirmative determination. The defendant-intervenor is asserting that Commerce should have made a negative determination by finding the 0.97% dumping margin de minimis. Congress provided that a challenge to an affirmative determination of Commerce followed by a negative Commission determination must be brought 30 days after notice of the Commission's final negative determination in the Federal Register pursuant to 19 U.S.C. § 1516a(a)(3) (Supp. III 1985). See 28 U.S.C. § 2636(c) (Supp. III 1985).

Although defendant-intervenor's position that it is wasteful of time and resources for it to challenge an affirmative Commerce determination followed by a negative Commission determination may have some merit, there are cases in which it was beneficial to the foreign interested party to contest an affirmative Commerce determination despite a negative Commission determination. See Canadian Meat Council v. United States, 10 C.I.T. ___, 644 F.Supp. 1125 (1986); Internor Trade, Inc. v. United States, 10 C.I.T. ___,...