Ugine & Alz Belgium, N.V. v. U.S.
| Decision Date | 17 August 2005 |
| Docket Number | Court No. 05-00444.,Slip Op. 05-97. |
| Parties | UGINE & ALZ BELGIUM, N.V.; Arcelor Stainless USA, LLC; and Arcelor Trading USA, LLC, Plaintiffs, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Shearman & Sterling LLP, Washington, DC (Robert S. LaRussa, Stephen J. Marzen and Ryan A.T. Trapani) for the plaintiffs.
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, and Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Michael D. Panzera); and Office of Chief Counsel for Import Administration, U.S. Department of Commerce (Ada Loo and Arthur Sidney) and Bureau of Customs and Border Protection, U.S. Department of Homeland Security (Christopher Chen), of counsel, for the defendant.
Collier Shannon Scott, PLLC (David A. Hartquist, R. Alan Luberda, Kathleen W. Cannon and Adam H. Gordon) for proposed intervenor-defendants AK Steel Corporation, Allegheny Ludlum Corporation, North American Stainless, United Auto Workers Local 3303, Zanesville Armco Independent Organization, and United Steelworkers of America, AFL-CIO/CLC.
Jurisdiction of the court is pleaded to be pursuant to 28 U.S.C. § 1581(i) over the subject matter of this action, which is the propriety of certain liquidation instructions that have been issued to the Bureau of Customs and Border Protection, U.S. Department of Homeland Security1 by the International Trade Administration, U.S. Department of Commerce2 in conjunction with its Notice of Amended Final Determinations: Stainless Steel Plate in Coils from Belgium and South Africa; and Notice of Countervailing Duty Orders: Stainless Steel Plate in Coils from Belgium, Italy and South Africa, 64 Fed.Reg. 25,288 (May 11, 1999), and its Antidumping Duty Orders; Certain Stainless Steel Plate in Coils From Belgium, Canada, Italy, the Republic of Korea, South Africa, and Taiwan, 64 Fed.Reg. 27, 756 (May 21, 1999).
In commencing this action via summons and complaint, counsel for the plaintiffs also filed applications for immediate injunctive relief. The court promptly thereupon conferred with them and counsel for the defendant (and the proposed intervenor-defendants) who consented to entry (on July 27, 2005) of a temporary restraining order, which, among other things, enjoins CBP
from implementing Liquidation Instructions issued by the [ITA] in conjunction with Message No. 5182203 (July 1, 2005)[,] Message No[.] 5189205 (July 8, 2005), Message No. 5189204 (July 8, 2005), Message No. 5199201 (July 18, 2005), or otherwise taking any action that results in the treatment of entries of Stainless Steel Plate in Coils hot rolled in Germany and not further cold rolled in Belgium as having a country of origin of Belgium for the purpose of assessing antidumping or countervailing duties[.]
The order covers listed entries of subject merchandise ("SSPC") in the ports of Chicago (between July 29, 1999 and Oct. 31, 2001), Houston (between Oct. 26, 1998 and Feb. 23, 2002), Los Angeles (on April 13, 1999), Portland (between Feb. 10, 1999 and Jan. 29, 2002), Richmond (between Feb. 24, 1999 and July 17, 2001), Seattle (between March 4, 1999 and Jan. 13, 2000), and Philadelphia (between Sept. 8, 1998 and Feb. 25, 2002).
The defendant also consented to the motion of the above-named domestic interested parties and certified or recognized unions within the meaning of 19 U.S.C. § 1677(9)(C) and (D) for leave to intervene in this action as parties defendant. The plaintiffs have now filed papers in opposition to this motion to intervene, arguing, among other things, that this action
is one solely between [them], whose entries are at issue, and the Government.
For their part, [the] ... Proposed Intervenors[ ] cannot identify any legally cognizable interest in this proceeding. Contrary to [their] suggestion, this proceeding is not an appeal of administrative review proceedings. Proposed Intervenors' interested party status in such an appeal is thus entirely irrelevant. Nor is this proceeding one to determine whether or to what extent Proposed Intervenors are entitled to disbursements from the special accounts created by the Continued Dumping and Subsidy Offset Act of 2000 ("CDSOA"), 19 U.S.C. § 1675c. As the Government has argued before the World Trade Organization ("WTO"), the CDSOA is merely a disbursement program and "has nothing to do with imported goods or importers."... Ex. 1. The CDSOA deals only with the allocation and disbursement of already collected duties, not the Government's prior discretionary procedures to assess and collect those duties.
Memorandum in Opposition to Motion to Intervene, pp. 1-2. This opposition has engendered in turn a motion by the proposed intervenor-defendants for leave to respond to the plaintiffs, which motion is hereby granted. The response is, in part, that,
while domestic parties may not appeal a liquidation by Customs that has occurred, they can participate in a challenge to liquidation instructions issued by Commerce prior to liquidation. Arcelor cites no authority to the contrary. Proposed intervenors were interested parties in the proceedings that generated the challenged liquidation instructions, and indeed, Commerce sought comments from the domestic industry as well as Arcelor as to the appropriate scope and nature of those instructions. Proposed intervenors clearly have a cognizable interest in the instructions issued and the underlying decision that they represent.
Motion for Leave to Respond to Plaintiffs' Opposition to Motion to Intervene, pp. 2-3.
Upon consideration of the arguments, well-presented on both sides, the court concludes that the determinative factor is the direct participation before the ITA by the petitioners-cum-proposed-parties-at-bar in the agency promulgation of the liquidation instructions now at issue herein. See, e.g., Memorandum in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction [hereinafter "Plaintiffs' Memorandum"], Exhibit 9. That is, having been privy to and part of that administrative process, their motion for leave to formally join the judicial review of the results thereof can be, and it hereby is, granted.
According to the complaint and corporate disclosure statements on USCIT Form 13 filed in conjunction therewith, the first-named plaintiff is a corporation organized under the laws of Belgium, whereas the two Arcelor firms are creatures of the law of Delaware, U.S.A. All three corporations are wholly-owned subsidiaries of a Luxembourg corporation, Arcelor S.A. Their complaint avers:
German SSPC Mistakenly Entered as Belgian Merchandise
9. From September 4, 1998 to April 30, 2002, Arcelor imported into the United States SSPC that was hot rolled in Germany and not further cold rolled in Belgium. The country of origin of such merchandise is Germany.
10. Although the SSPC was not further cold rolled in Belgium, it was pickled, annealed, packaged, and shipped from Belgium. Accordingly, at the time of entry, Arcelor mistakenly declared the country of origin for the merchandise to be Belgium rather than Germany.
11. At the time Arcelor's German SSPC entered the United States, the Antidumping and Countervailing Duty Orders for SSPC from Belgium were in effect.
12. Arcelor paid cash deposits of antidumping and countervailing duties on the German hot-rolled SSPC that entered the United States at the rates specified in the Orders for Belgian SSPC.
13. Because the country of origin of the SSPC imported by Arcelor is Germany, that merchandise was not and never has been subject to the Antidumping and Countervailing Duty Orders for S[SPC] from Belgium and Arcelor should not have had to pay cash deposits of antidumping and countervailing duties.
14. Promptly after realizing its mistake, Arcelor filed disclosures and timely protests with Customs pursuant to 19 U.S.C. § 1514 to correct the country of origin.
15. For its part, Commerce mistakenly included the German SSPC in its calculation of the antidumping duty rates for Belgian SSPC in the first, second and third periods of review.
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16. Consistent with its long-standing practice, in the Fourth Administrative Review of the Antidumping Duty Order for S[SPC] from Belgium, Commerce determined that SSPC hot rolled in Germany and not further cold rolled in Belgium is German....
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Commerce Instructed Customs to Liquidate Entries of Arcelor's German SSPC as Belgian Merchandise
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20. On July 1, 2005, Commerce issued to Customs ... Fourth Review Period Antidumping Duty Liquidation Instructions[ ]. Those instructions limited — to entries of SSPC made on or after May 1, 2002 — application of Commerce's determination that SSPC hot rolled in Germany and not further cold rolled in Belgium is not subject to the Antidumping Duty Order.
21. On July 1, 2005, Commerce issued a memorandum attempting to explain its reasons for issuing the Fourth Review Period Antidumping Duty Liquidation Instructions.... Commerce refused to state that all SSPC hot rolled in Germany and not further cold rolled in Belgium, imported by Arcelor, is German for country-of-origin purposes....
22. On July 8, 2005, ... Commerce issued ... for ... entries for the period 09/01/1998 through 12/31/1999 [ ] "Countervailing Duty Liquidation Instructions" [that] ... instructed Customs to liquidate SSPC hot rolled in Germany and not further cold rolled in Belgium as merchandise subject to the countervailing duty order for SSPC from Belgium.... Commerce gave no reason why it instructed Customs to liquidate German merchandise as Belgian.
23. On July 8, 2005, ... Commerce issued Countervailing Duty Cash Deposit Instructions for S[SPC] from Belgium [that] ... instructed Customs that "[e]ffective 05/01/2002 ... entries of SSPC hot rolled in Germany and not further cold rolled in Belgium are not subject to the...
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