Sahaviriya Steel Industries Public v. U.S.

• Citation: 601 F.Supp.2d 1355
• Decision Date: 24 February 2009
• Docket Number: Slip Op. 09-15. Court No. 08-00353.
• Parties: SAHAVIRIYA STEEL INDUSTRIES PUBLIC COMPANY LIMITED, Plaintiff, v. UNITED STATES, Defendant, and United States Steel Corporation, Defendant-Intervenor.
• Court: U.S. Court of International Trade

601 F.Supp.2d 1355

SAHAVIRIYA STEEL INDUSTRIES PUBLIC COMPANY LIMITED, Plaintiff, v. UNITED STATES, Defendant, and United States Steel Corporation, Defendant-Intervenor.

Slip Op. 09-15. Court No. 08-00353.

United States Court of International Trade.

February 24, 2009.

Hughes Hubbard & Reed LLP, (Kenneth J. Pierce, Robert L. LaFrankie, Victor S. Mroczka) for Sahaviriya Steel Industries Public Company Limited, Plaintiff.

Michael F. Hertz, Deputy Assistant Attorney General; Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Jane C. Dempsey, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice; Of Counsel: Aaron P. Kleiner, Office of Chief Counsel for Import Administration, United States Department of Commerce, for the United States, Defendant.

Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC (Robert E. Lighthizer, John J. Mangan, Jeffrey D. Gerrish, Ellen J. Schneider, Nathaniel B. Bolin) for United States Steel Corporation, Defendant-Intervenor.

OPINION

TSOUCALAS, Senior Judge.

Pending before the Court are three motions. On one side, Plaintiff, Sahaviriya Steel Industries Public Company Limited ("SSI") moves this Court, pursuant to USCIT Rule 65(a), for a preliminary injunction to enjoin the United States Department of Commerce ("Commerce" or "Dept.") from continuing the changed circumstances review of SSI's sales of certain hot-rolled carbon steel flat products from Thailand. See Pl.'s Mot. for Prelim. Inj. & to Advance & Consol. Trial on the Merits. SSI further moves, pursuant to USCIT R. 65(a)(2), to advance and consolidate a trial on the merits with a hearing of its application for injunctive relief. See id.

On the other side, Defendant and Defendant-Intervenor each move for dismissal, pursuant to USCIT R. 12(b)(1) and 28 U.S.C. § 1581, for lack of subject matter jurisdiction and because the action is not ripe for judicial review. See Def.'s Mot. to Dismiss; Mot. to Dismiss of Def.-Int. On December 12, 2008, the Court heard oral argument to determine whether preliminary injunctive relief or dismissal was appropriate.

For the reasons set forth below, the Court finds it lacks jurisdiction to hear the claims raised by Plaintiff, and grants Defendant and Defendant-Intervenor's motions to dismiss. The Court, therefore, need not address Plaintiffs stated grounds for injunctive relief.

BACKGROUND

On November 29, 2001, Commerce issued an antidumping duty order on certain hot-rolled carbon steel flat products from Thailand. See Antidumping Duty Order: Certain Hot-Rolled Carbon Steel Flat Products From Thailand, 66 Fed.Reg. 59,562 (Nov. 29, 2001). The order was based on separate findings by Commerce and the U.S. International Trade Commission ("ITC" or "Commission") that certain hotrolled steel from Thailand had been sold in the United States at less than fair value resulting in material injury to the domestic hot-rolled steel industry. See id. at 59,563-64. SSI was among the Thai producers of subject merchandise included in the antidumping duty order. See id. at 59,563.

Over the following three years, Commerce conducted a series of administrative reviews of the order in which it determined that SSI had not sold hot-rolled steel at less than normal value. See Certain Hot-Rolled Carbon Steel Flat Products From Thailand: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 69 Fed.Reg. 19, 388 (Apr. 13, 2004); Certain Hot-Rolled Carbon Steel Flat Products from Thailand: Rescission of Antidumping Duty Administrative Review, 69 Fed.Reg. 18,349 (Apr. 7, 2004) (this second administrative review was rescinded when the parties requesting the review withdrew their requests); Certain Hot-Rolled Carbon Steel Flat Products from Thailand: Final Results of Antidumping Duty Administrative Review, Partial Revocation of Antidumping Duty Order and Partial Rescission of Antidumping Duty Administrative Review ("Final Results"), 71 Fed.Reg. 28,659 (May 17, 2006). In November 2004, during the course of the third administrative review, SSI requested partial revocation of the order with respect to its sales of subject merchandise. See Complaint ¶ 8; Mem. of Def.-Int. in Supp. of Mot. to Dismiss & Opp'n to Pl.'s Mot. for Prelim. Inj. ("Def.-Int.'s Memorandum"), Exhibit 2 (SSI's Request for Administrative Review, Request for Revocation of Antidumping Duty Order in Part, and Entry of Appearance) ("SSI Request"). In its revocation request, SSI agreed "to immediate reinstatement of the order, so long as any Thai exporter or producer is subject to it, should the Department determine that SSI, subsequent to the requested revocation, sold the subject merchandise at less than fair value." SSI Request at 3.

After having determined that SSI had sold the subject merchandise at not less than normal value for a period of three consecutive years, Commerce revoked the antidumping duty order for SSI's exports of hot-rolled steel. See Final Results, 71 Fed.Reg. 28,661; see also Issues and Decision Memorandum for the Final Results of Antidumping Duty Administrative Review, Partial Revocation of Antidumping Duty Order and Partial Rescission of Antidumping Duty Administrative Review of Certain Hot-Rolled Carbon Steel Flat Products from Thailand ("Issues and Decision Memorandum"), cmt. 1, p. 12. Despite partial revocation of the antidumping order with respect to SSI, the order itself remained in effect as to other Thai producers and exporters. See Certain Hot-Rolled Carbon Steel Flat Products from India, Indonesia, the People's Republic of China, Taiwan, Thailand, and Ukraine: Continuation of Antidumping Duty and Countervailing Duty Orders, 72 Fed.Reg. 73,316 (Dec. 27, 2007).

On November 8, 2006, U.S. Steel submitted an allegation to Commerce, claiming that SSI had resumed sales of hotrolled steel products at less than normal value subsequent to its removal from the original antidumping order. See Initiation of Antidumping Duty Changed Circumstances Review: Certain Hot-Rolled Carbon Steel Flat Products from Thailand ("Notice of Initiation"), 73 Fed.Reg. 18,766 (Apr. 7, 2008). Consistent with agency regulations,¹ U.S. Steel requested that Commerce initiate a changed circumstances review to reinstate the order with regard to SSI's exports of subject merchandise to the United States. See id. Accordingly, Commerce conducted an analysis of the information it received from U.S. Steel to determine the sufficiency of its allegations. While U.S. Steel's initial request for the changed circumstances review was submitted on Nov. 8, 2006, additional information required by Commerce was gathered over the course of a seventeen month period. For example, Commerce issued several supplemental questionnaires between December 2006 and February 2008 seeking additional information regarding petitioner's allegations. U.S. Steel filed its last response with Commerce on March 5, 2008.

Finally, on March 28, 2008, Commerce, relying on its authority under section 751(b)(1) of the Tariff Act of 1930,² codified at 19 U.S.C. § 1675(b)(1),³ initiated the underlying changed circumstances review to determine whether SSI had sold hotrolled steel at less than normal value, during the period July 1, 2006 through June 30, 2007, and whether it should therefore be reinstated in the original antidumping duty order. See Notice of Initiation, 73 Fed.Reg. at 18,771. Following initiation, Commerce issued several questionnaires to SSI in which it requested data on the company's U.S. sales, costs of production and other company specific information for the period of review. See Def.-Int.'s Memorandum, Exhibit 11 (Questionnaire Issued by the Dept. of Commerce in Changed Circumstances Review of Certain Hot-Rolled Carbon Steel Flat Products from Thailand (Apr. 11, 2008)); Exhibit 16 (The Department of Commerce's First Supplemental Questionnaire (July, 18, 2008)); Exhibit 17 (The Department of Commerce's Second Supplemental Questionnaire (Aug. 7, 2008)); The Department of Commerce's Supplemental Cost Information Questionnaire (Aug. 6, 2008); The Department of Commerce's Third Supplemental Questionnaire (Sept. 18, 2008). SSI responded to these requests for information, while simultaneously challenging the Department's authority to conduct a changed circumstances review for the purpose of reinstating a previously revoked antidumping duty order. See Complaint, Exhibit 3 (SSI Request to Reconsider and Terminate Initiation of Changed Circumstances Review (Aug. 25, 2008)).

Plaintiff commenced this action on October 7, 2008, and seeks injunctive relief to prevent the Department from continuing with its changed circumstances review. Defendant and Defendant-Intervenor oppose Plaintiff's motion, and urge this Court to dismiss the instant action for lack of subject matter jurisdiction and because the claims contained therein are not yet ripe.

ARGUMENTS OF THE PARTIES

I. Plaintiff's Arguments

Plaintiff challenges the Department's legal authority to initiate a changed circumstances review for the purpose of reinstating a previously revoked antidumping duty order because "[s]ection 751(b) of the Act does not authorize the Department to reinstate an order with respect to merchandise covered by a revocation." Mem. in Supp. of Pl.'s Mot. to Advance & Consol. Trial on the Merits & for Prelim. Inj. Relief ("Pl.'s Memorandum") at 12 (internal citation omitted). SSI argues that section 1675(b) only grants authority to Commerce and the ITC to conduct a changed circumstances review of "a final affirmative determination that resulted in an antidumping duty order" provided there are changed circumstances sufficient to warrant a review. 19 U.S.C. § 1675(b)(1); see also Pl.'s Memorandum at 13. According to Plaintiff, there are only two final affirmative...