Corus Staal Bv v. U.S.

515 F.Supp.2d 1337

CORUS STAAL BV, Plaintiff, v. UNITED STATES, Defendant, and United States Steel Corporation, et al., Defendant-Intervenors.

Slip Op. 07-140.

Court No. 07-00270.

United States Court of International Trade.

September 19, 2007.

Steptoe & Johnson, LLP, Washington, DC (Joel D. Kaufman), Alice A. Kippel, Jamie B. Beaber, and Richard O. Cunningham, for Plaintiff Corns Staal By.

Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson, Director; (Claudia Burke), Commercial Litigation Branch, Civil Division, United States Department of Justice, for Defendant United States.

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

Wiley Rein, LLP, Washington, DC (Timothy C. Brightbill) and Alan H. Price, for Defendant-Intervenor Nucor Corporation.

Stewart and Stewart, Washington, DC (William A. Fennell) and Terence P. Stewart, for Defendant-Intervenor Mittal Steel USA, Inc.

OPINION

JUDITH M. BARZILAY, Judge.

Plaintiff Corus Staal BV ("Corus"), moved this court for a preliminary injunction to enjoin the Defendant¹ United States (the "Government") from liquidating certain entries of hot-rolled carbon steel flat products from the Netherlands ("HRCS") that are subject to antidumping duties. See Antidumping Duty Order: Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands, 66 Fed. Reg. 59,565 (Dep't Commerce Nov. 29, 2001) ("AD Order"). Corns has participated in" several proceedings before the Court contesting the Government's use of "zeroing" to calculate dumping margins. See Corns Staal BV v. United States, 29 CIT ___, 387 F.Supp.2d 1291 (2005) ("Corns Staal I "), aff'd, 186 Fed.Appx. 997 (Fed.Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 3001, ___ L.Ed.2d ___ (2007); see also Corns Staal BV v. United States, 31 CIT ___ 493 F.Supp.2d 1276 (2007) ("Corns Staal 5AR "); Corns Staal BV v. United States, Slip Op. 06-112, 2006 WL 2056401 (July 25, 2006) (not reported in F.Supp.); Corus Staal BV v. U.S. Dep't of Commerce, 27 CIT 388, 259 F.Supp.2d 1253 (2003). This opinion follows this court's decision from the bench on August 1, 2007, denying Plaintiff's application for a preliminary injunction. Despite clear statutory guidelines to the contrary, Corus contends that the Department of Commerce ("Commerce") may not impose antidumping duties on its imports unless there is a valid determination of dumping pursuant to 19 U.S.C. § 1673. The Government moved to dismiss this action under USCIT Rules 12(b)(1) and 12(b)(5).

Whether Corus satisfies the criterion for a preliminary injunction was thoroughly discussed in a previous opinion issued by another judge of this Court.² See Corus Staal 5AR, 31 CIT at ___, 493 F.Supp.2d at 1281. As that case was dismissed on jurisdictional grounds, the four-part preliminary injunction analysis included in the opinion is dicta. See id. at 1288. The facts of this case, however, are legally distinguishable from Corus Staal 5AR, and the court finds that jurisdiction here is proper under 28 U.S.C. § 1581(i). Although the factual distinctions mentioned above provide grounds for jurisdiction, they do not affect the merits of Corus's claim. In other words, Corus cannot meet the criteria for a preliminary injunction in this case for the same reasons outlined in Corus Staal 5AR.

I. Background

On November 29, 2001, Commerce issued an antidumping order on HRCS after applying a methodology called "zeroing"³ to determine whether the subject entries were sold at less than fair value. See AD Order, 66 Fed.Reg. 59,565 (Dep't Commerce Nov. 29, 2001); Notice of Amended Final Determination of Sales at Less Than Fair Value; Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands, 66 Fed.Reg. 55,637 (Dep't Commerce Nov. 2, 2001). Corus, a Dutch producer of HRCS; challenged the use of "zeroing" during the first administrative review. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 67 Fed.Reg. 78,772 (Dep't Commerce Dec. 26, 2002); see also Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands; Preliminary Results of Antidumping Duty Administrative Review, 68 Fed.Reg. 68,341, (Dep't Commerce Dec. 8, 2003). In the final results, Commerce reaffirmed the use of "zeroing" and imposed an adjusted weightedaverage dumping margin on the subject entries. See Certain Hot-Rolled Carbon Products from the Netherlands; Final Results of Antidumping Duty Administrative Review, 69 Fed.Reg. 33,630 (Dep't Commerce June 16, 2004) ("Final Results").

Corus sought review of the Final Results in this Court pursuant to 28 U.S.C. § 1581(c). See Corus Staal I, 29 CIT at ___, 387 F.Supp.2d at 1292-93. Before issuing its judgment, the court entered an injunction that prohibited Customs from liquidating the subject entries during the pendency of the litigation. Ultimately, the' court upheld the Final Results. See id. at ___, 387 F.Supp.2d at 1297-1301, 1305. On appeal, the Federal Circuit affirmed in a per curiam opinion, whereupon Corus submitted a petition for rehearing en banc, which was denied. See Corus Staal BV, 186 Fed.Appx. 997. The Supreme Court denied certiorari. See Corns Staal, 127 S.Ct. 3001. Consequently, the injunction expired, and Commerce instructed Customs to liquidate Corus's entries pursuant to the Final Results on July 6, 2007. See 19 U.S.C. 1516a(c) & (e). In response, Corus moved this court for a temporary restraining order ("TRO") to "maintain the status quo pending a hearing on preliminary injunctive relief." Pl. Br. 3. The court granted the TRO until July 30, 2007, which was subsequently extended through August 1, 2007, the date of the preliminary injunction hearing.

While Corus was disputing its claims in our domestic courts, the European Communities ("EC") initiated a proceeding before the World Trade Organization ("WTO"), challenging the United States' practice of "zeroing" to calculate dumping margins.⁴ See Request for Consultations by the European Communities, United States-Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing"), WT/DS294/1 (June 19, 2003) ("Request for Consultations by EC"). The WTO panel concluded that Commerce's use of "zeroing" violated U.S. obligations under the WTO Antidumping Agreement ("AD Agreement") with respect to antidumping investigations.⁵ See Panel Report, United States — Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing"), ¶¶ 8.2, 8.4, WT/DS294/R (Oct. 31, 2005) ("Panel Report"). The United States appealed certain aspects of the Panel Report, but the determination concerning "zeroing" remained intact. See Appellate Body Report, United States — Laws, Regulations and Methodology for Calculating Dumping Margins, ¶ 263, WT/DS294/AB/R (Apr. 18, 2006) ("Appellate Body Report"). Moreover, the Appellate Body held that the use of "zeroing" was also impermissible during administrative reviews. See id. ¶¶ 132-35, 2263(a)(i).

Accordingly, the United States started the process of implementing the decision outlined in the Panel Report. See Implementation of the Findings of the WTO Panel in U.S. Zeroing (EC): Notice of Initiation of Proceedings Under Section 129 of the URAA; Opportunity to Request Administrative Protective Orders; and Proposed Timetable and Procedures, 72 Fed.Reg. 9306 (Dep't Commerce Mar. 1, 2007). The administrative procedures for implementing such a decision are contained in Sections 123 and 129 of the Uruguay Round Agreements Act ("URAA"), codified in 19 U.S.C. §§ 3533(g)⁶ and 3538,⁷ respectively.⁸ See also 19 U.S.C. § 3511 (implementing URAA). In the Section 123 proceeding, Commerce eliminated the practice of "zeroing" in "all current and future antidumping investigations'" as of February 22, 2007.⁹ Corus Staal 5AR, 31 CIT at ___ 493 F.Supp.2d at 1280 (quoting Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin During an Antidumping Investigation; Final Modification, 71 Fed.Reg. 77,722 (Dep't Commerce Dec. 27, 2006) ("Section 123 Determination")). In addition, Commerce commenced Section 129 proceedings to "recalculate the dumping margins in each ... antidumping investigation[] ... without zeroing." Id. After performing this recalculation, Commerce adjusted Corus's dumping margin to zero and revoked the AD Order. See Section 129 Determination, 72 Fed.Reg. at 25,262. The effective date of the Section 129 Determination was April 23, 2007. Id.

During this period, Commerce also initiated the fifth administrative review of the AD Order at the request of three domestic steel companies.¹⁰ See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 71 Fed.Reg. 77,720 (Dep't Commerce Dec. 27, 2006). However, the domestic producers decided to rescind their request for an administrative review, see Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands: Notice of Rescission of Antidumping Duty Administrative Review, 72 Fed.Reg. 15,105, 15,106 (Dep't Commerce Mar. 30, 2007), which prompted Commerce to issue liquidation instructions on Corus's entries.¹¹ See 19 C.F.R. § 351.212(c). At the time Commerce issued these particular instructions, the Section 129 Determination was not in effect. See Corus Staal 5AR, 31 CIT at ___, 493 F.Supp.2d at 1281; see also Section 129 Determination, 72 Fed.Reg. at 25,261. Corus objected to the recision of the fifth administrative review and argued that Commerce was precluded from issuing liquidation instructions that imposed antidumping duties since the Section 123 Determination prohibited the use of "zeroing" in dumping investigations. Commerce rejected this argument. Corus then sought judicial review in this Court pursuant to § 1581(i), claiming that Commerce's liquidation instructions to Customs were unlawful. See Corus Staal 5AR, 31 CIT at ___, 493 F.Supp.2d at 1284; cf. Shinyei Corp. v. United States, 355 F.3d 1297, 1304 (Fed.C...