United States Steel Corp. v. United States

• Decision Date: 16 September 1985
• Docket Number: Court No. 85-07-00954.
• Citation: 618 F. Supp. 496
• Parties: UNITED STATES STEEL CORPORATION, Plaintiff, v. The UNITED STATES, et al., Defendants.
• Court: U.S. Court of International Trade

618 F. Supp. 496

UNITED STATES STEEL CORPORATION, Plaintiff, v. The UNITED STATES, et al., Defendants.

Court No. 85-07-00954.

United States Court of International Trade.

September 16, 1985.

Law Dept. of U.S. Steel Corp. (J. Michael Jarboe), Pittsburgh, Pa., for plaintiff.

Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, and Platte B. Moring, III, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendants.

Hale, Russell & Gray, New York City (Louis H. Kurrelmeyer), New York City, for intervenor.

Opinion and Order

RESTANI, Judge.

This matter is now before the court on defendant's motion and plaintiff's cross-motion for summary judgment. At issue is the interpretation placed on § 606 of the Trade and Tariff Act of 1984 by the International Trade Administration of the United States Department of Commerce (ITA). Section 606 allows a party to request that a final determination in a countervailing duty case not be issued until the issuance of a related antidumping duty determination. The purpose of § 606 is to allow hearings on injury to be consolidated before the International Trade Commission (ITC). See Cong.Rep. No. 1156, 98th Cong. 2d Sess. 175-176, reprinted in 1984 U.S.Code Cong. and Ad.News 5220, 5292-93. Section 606 is silent, however, as to the duration of the provisional remedy of suspension of liquidation in countervailing duty cases in which a postponement of the final determination is requested. Plaintiff claims that § 606 mandates that suspension continue until publication of the final determination. In contrast, the government defendant argues that the ITA properly concluded that Congress intended that it remain faithful to the Subsidies Code of the General Agreements on Tariff and Trade (GATT), 31 U.S.T. 513, T.I.A.S. 9619, 55 U.N.T.S. 194, by terminating suspension of liquidation in a countervailing duty proceeding after 120 days.¹

I

The facts of this case are not in dispute. On December 19, 1984, plaintiff, United States Steel Corporation (USS) filed countervailing duty petitions with the ITA and ITC with regard to certain carbon steel products from Sweden and Austria. On the same day USS also filed antidumping petitions against the Austrian product. The ITA published preliminary affirmative determinations in both countervailing duty investigations on March 20, 1985. 50 Fed. Reg. 11,220, 11,224 (1985). Liquidation was suspended on that date pursuant to § 703 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1671b(d)(1) (1982). The next day, plaintiff made its postponement request for its countervailing duty cases under § 606 of the Trade and Tariff Act of 1984, 19 U.S.C.A. § 1671d(a)(1) (West Supp. 1985). The ITA granted the § 606 extension with the expected date of the final antidumping determination being September 26, 1985. On July 18, 1985, however, the ITA, fearing that continuation of suspension would violate GATT, directed the Customs Service to terminate the suspension and begin liquidation. On July 19, 1985, this court granted a temporary restraining order preventing termination of suspension. That order was dissolved upon the court's denial of plaintiff's motion for a preliminary injunction. United States Steel Corp. v. United States, 9 CIT ___, 614 F.Supp. 1241 (1985). An expedited briefing schedule was issued with respect to the motions now before the court.

II.

USS claims that § 606 is clear and unambiguous in meaning, intent, and application. Plainly on the face of the statute, however, this is not so. The statute provides in full:

Within 75 days after the date of its preliminary determination under section 1671b(b) of this title, the administering authority shall make a final determination of whether or not a subsidy is being provided with respect to the merchandise; except that when an investigation under this part is initiated simultaneously with an investigation under part II, antidumping, which involves imports of the same class or kind of merchandise from the same or other countries, the administering authority, if requested by the petitioner, shall extend the date of the final determination under this paragraph to the date of the final determination of the administering authority in such investigation initiated under part II.

19 U.S.C.A. § 1671d(a)(1) (West Supp.1985). There simply is no language contained in the provision referring to suspension of liquidation, much less indicating the duration of any suspension.

Plaintiff argues that § 606 was designed to conform to an existing body of countervailing duty law which mandates suspension of liquidation between an affirmative preliminary ITA determination and the final finding in the case. More specifically, plaintiff seeks to draw support from § 703(d)(1) of the Trade and Tariff Act of 1930, as amended, 19 U.S.C. § 1671b(d)(1) (1982), which compels suspension of liquidation upon a preliminary affirmative determination.² Plaintiff stresses that the legislative history of § 703(d) notes that "the requirement that liquidation be suspended upon an affirmative preliminary determination is intended to preserve the status quo during the remainder of the investigation." S.Rep. No. 249, 96th Cong., 1st Sess. 50, reprinted in 1979 U.S.Code Cong. & Ad.News 381, 436. Plaintiff argues that in drafting § 606 Congress intended to maintain suspension of liquidation regardless of the duration of time between the preliminary ITA determination and the final determination in the case.

Plaintiff's view that Congress' desire to maintain the status quo overrides other considerations is not persuasive in light of an examination of all relevant countervailing duty provisions. First, § 703(d) merely states when suspension of liquidation must commence. It does not specify when suspension of liquidation must terminate. Second, that the time for termination is after the expiration of the 120 day period may be determined from a review of the entire statutory framework.

The provision controlling the date of the Commission's final determination after the ITA issues a preliminary affirmative finding is § 705 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1671d (1982). Section 705(b)(2) calls for a final ITC determination within 120 days after the date the ITA makes a preliminary affirmative finding. Although the legislative history of § 705 does not specifically mention a reason for the 120 day limit, the statute itself and the general legislative history of § 705 are evidence that § 705 was enacted to be GATT consistent. As the legislative history of § 705 states: "After an affirmative preliminary determination in a countervailing duty investigation, Article 2(4) of the Agreement requires simultaneous consideration of whether a subsidy and injury exist. Section 705 would implement this requirement for the United States." S.Rep. No. 249, 96th Cong., 1st Sess. 57, reprinted in 1979 U.S.Code Cong. & Ad.News 381, 443.³ Furthermore, § 705(b)(2) provides, alternatively, that the ITC's final decision may be made within 45 days of the ITA's final determination. This, together with the 75 day period provided in § 606 for non-extended cases equals 120 days. Obviously Congress intended to design the statute to adhere to the 120 day limit for provisional remedies. In sum, there is nothing on the face of the provisions implementing the initiation and duration of countervailing duty proceedings, nor in the legislative history of those provisions, which compels the conclusion that absent critical circumstances,⁴ Congress intended that a provisional suspension last longer than 120 days.

Plaintiff next calls the court's attention to § 613 of the Trade and Tariff Act of 1984, 19 U.S.C.A. § 1671b(h) (West Supp. 1985). Section 613 concerns upstream subsidy cases. The section extends the time period in which a final determination is to be made to 165 days after a preliminary finding, while explicitly limiting suspension of liquidation to the 120 day time period after the preliminary determination. Plaintiff contends that § 613 is an example of a situation in which Congress explicitly limited suspension of liquidation to 120 days, although time for the final determination may be extended beyond the four month period. Plaintiff argues that § 613 supports the proposition that had Congress intended to limit suspension of liquidation under § 606, the legislature would have made the limit explicit. Therefore, continues plaintiff, the absence of a 120 day limit in § 606 should not be deemed unintentional. See Kentucky ex rel. Hancock v. Ruckelshaus, 362 F.Supp. 360, 365 (W.D. Ky.1973), aff'd, 497 F.2d 1172 (6th Cir. 1974), aff'd sub nom, Hancock v. Train, 426 U.S. 167, 96 S.Ct. 2006, 48 L.Ed.2d 555 (1976) ("Where a particular provision appears in a statute, the failure to include that same requirement in another section of the statute will not be deemed to have been inadvertent."); see also Dunlop v. First National Bank of Arizona, 399 F.Supp. 855, 856 (D.Ariz.1975).⁵

While the maxim of construction which plaintiff attempts to invoke has "particular vitality when applied to carefully constructed and intertwined statutory provisions such as those found in the Tariff Schedules," Algoma Tube Corp. v. United States, 9 CIT ___, Slip Op. 85-89 at 9 (August 28, 1985), it has minimal value in the context of the constantly developing law of unfair international trade practices. The United States' countervailing duty law was restructured by the Trade and Tariff Act of 1979 and amended again by 1984 legislation in an attempt to cure developing problems. See H.R.Rep. No. 725, 98th Cong., 2nd Sess; see also Holmer & Bello, The Trade and Tariff Act of 1984: The Road to Enactment, 19 Int'l. Law. 287, 291 (1985). The two Trade Acts and their various provisions do not fit together in detail to the same degree as various items within a particular Tariff Schedule. Plaintiff's contextual analysis is therefore not a...