Full Member Subgroup of the American Institute of Steel Construction, LLC v. United States

Slip Op. 20-156
UNITED STATES COURT OF INTERNATIONAL TRADE
FULL 	MEMBER 	SUBGROUP 	OF 	THE
AMERICAN 	INSTITUTE 	OF 	STEEL
CONSTRUCTION, LLC,
Plaintiff,
v.
UNITED STATES,
Defendant,
and
LES CONSTRUCTIONS BEAUCE-
ATLAS, INC. ET AL.,
Defendant-Intervenors.
Before: Claire R. Kelly, Judge
Court No. 20-00088
OPINION AND ORDER
[ Granting Defendant’s motion to dismiss. ]
Dated: November 3, 2020
Alan H. Price, Wiley Rein LLP, of Washington, DC, for plaintiff Full Member
Subgroup of the American Institute of Steel Construction, LLC. Also on the brief was
Christopher B. Weld, Stephanie M. Bell, and Adam M. Teslik.
In K. Cho, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, for defendant United States. Also on the briefs were Michael
D. Granston, Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and
Patricia M. McCarthy, Assistant Director. 	Of counsel was Reza Karamloo, Senior
Attorney, 	Office 	of 	Chief 	Counsel 	for 	Trade 	Enforcement 	& 	Compliance, 	U.S.
Department of Commerce.
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Matthew P. McCullough, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington,
DC, for defendant-intervenor the Government of Canada. Also on the brief was Tung
Nguyen.
Kelly, Judge: 	Defendant moves to dismiss Plaintiff’s complaint for lack of
subject-matter jurisdiction. 	See Def.’s Memo. Supp. Mot. to Dismiss for Lack of
Subject-Matter Jurisdiction & Opp’n to Mot. to Stay, July 9, 2020, ECF No. 31 (“Def.’s
Br.”). Defendant and Defendant-Intervenor, the Government of Canada, submit that
section 516A(g) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(g) (2018) 1
precludes the court from exercising jurisdiction over Full Member Subgroup of the
American Institute of Steel Construction, LLC’s (“AISC”) challenge to the U.S.
Department of Commerce’s (“Commerce”) final affirmative determination in its less
than fair value (“LTFV”) investigation of fabricated structural steel (“FSS”) from
Canada because Industries Canatal Inc.’s (“Canatal”) and Les Constructions Beauce-
Atlas, 	Inc.’s 	(“CBA”) 	timely 	requests 	for 	binational 	panel 	review 	of 	the 	final
determination pursuant to Article 1904 of the North American Free Trade Agreement
(“NAFTA”) are deemed to have been filed by an FTA country. See Def.’s Br. at 5–12;
1 On July 1, 2020, the United States-Mexico-Canada Agreement (“USMCA”) entered
into force, replacing the NAFTA. 	See United States-Mexico-Canada Agreement,
Office of the U.S. Trade Representative, https://ustr.gov/trade-agreements/free-trade-
agreements/united-states-mexico-canada-agreement (last visited Nov. 1, 2020); see
also United States-Mexico-Canada Agreement Implementation Act, Pub. L. No. 116-
113, 134 Stat. 11 (2020) (“Implementation Act”). 	Pursuant to section 432 of the
Implementation Act, the USMCA’s entry into force does not affect the disposition of
this action, which involves a final determination that was published before the
relevant amendments to the Tariff Act of 1930 became effective. 	As such, further
citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title
19 of the U.S. Code, 2018 edition.
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Government of Canada’s Resp. Br. Supp. Def.’s Mot. to Dismiss at 3–10, Aug. 13,
2020, ECF No. 35. 	AISC agrees that this court does not have jurisdiction, but
nonetheless requests that the court issue its decision in accordance with the pending
motion to dismiss in Building Systems de Mexico, S.A. de C.V. v. United States, Ct.
No. 20-00069 (“Building Systems”). 	See Pl.’s Resp. to Mot. to Dismiss at 1–4, Aug.
13, 2020, ECF No. 36 (“Pl.’s Resp.”). 	For the following reasons, Defendant’s motion
to dismiss is granted.
BACKGROUND
On February 25, 2019, in response to a petition filed by AISC, a trade
association 	representing 	domestic 	producers 	of 	FSS, 	Commerce 	initiated 	an
antidumping investigation into FSS from Canada, Mexico, and the People’s Republic
of China. 	See Certain [FSS] From Canada, Mexico, and the People’s Republic of
China, 84 Fed. Reg. 7,330 (Dep’t Commerce Mar. 4, 2019) (initiation of [LTFV]
investigations). Commerce affirmatively determined that sales of FSS from Canada
into the United States were being, or were likely to be, sold at LTFV, and its
investigation yielded weighted-average dumping margins of 6.70 and 0.00 percent for
CBA and Canatal, respectively. See Certain [FSS] From Canada, 85 Fed. Reg. 5,373,
5,374 (Dep’t Commerce Jan. 30, 2020) (final determination of sales at [LTFV]) (“Final
Results”) and accompanying Issues and Decision Memo. for [Final Results], A-122-
864, (Jan. 23, 2020), ECF No. 30-5 (“Final Decision Memo”).
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On February 28, 2020, the United States Section of the NAFTA Secretariat
received requests for binational review of Commerce’s final determination filed on
behalf of Defendant-Intervenors Canatal and CBA. 	See [NAFTA], Article 1904
Binational Panel Review, 85 Fed. Reg. 14,465 (Dep’t Commerce Mar. 12, 2020) (notice
of request for panel review; USA-CDA-2020-1904-02). 	On March 20, 2020, the U.S.
International Trade Commission published its final negative determination in its
contemporaneous investigation into whether imports of FSS cause (or represent a
threat of) material injury to the domestic industry. 	See [FSS] from Canada, China,
& Mexico, 85 Fed. Reg. 16,129 (Int’l Trade Comm’n Mar. 20, 2020).
Plaintiff AISC commenced this action pursuant to 28 U.S.C. § 1581(c) and 19
U.S.C. 	§ 	1516a(a)(2)(A)(i)(I), 	(B)(i), 	contesting 	portions 	of 	Commerce’s 	final
affirmative determination. See Summons, Apr. 17, 2020, ECF No. 1; Compl., May 13,
2020, ECF No. 9. In its complaint, AISC asserts that the court lacks jurisdiction over
its action because a party requested review before a NAFTA binational panel. 	See
Compl. at ¶¶ 2–5. 	Nonetheless, Plaintiff explains that it commences this action in
light of arguments raised in a related case, Building Systems, Ct. No. 20-00069. Id.
Specifically, the plaintiff in Building Systems asserts that this Court has jurisdiction
despite the fact that an interested party requested review before a NAFTA binational
panel. 	See Compl. ¶¶ 3–7, Mar. 30, 2020, ECF No. 6 (from Dkt. Ct. No. 20-00069).
Plaintiff AISC therefore commences this action because it speculates that if the Court
concludes that it has jurisdiction in Building Systems despite the request for
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binational panel review, it may do the same in this case. 	See Pl.’s Resp. at 1–4.
Defendant’s motion argues that the court lacks jurisdiction, 2 and as explained above,
Plaintiff does not disagree.
DISCUSSION
In relevant part, 28 U.S.C. § 1581(c) (2018) vests exclusive jurisdiction with
the Court over any civil action commenced under section 516A of the Tariff Act of
1930, as amended 19 U.S.C. § 1516a. Under 19 U.S.C. § 1516a(a)(2)(B)(i) the Court
may review “[f]inal affirmative determinations by the administering authority and
by the Commission under [19 U.S.C. §§ 1671d or 1673d], including any negative part
of such a determination (other than a part referred to in clause (ii)).” 3
However, 19 U.S.C. § 1516a(g) provides, in relevant part, that if a party seeks
binational review of “a determination described in [19 U.S.C. § 1516a(a)(2)(B)(i)–(iii),
(vi)–(vii)] . . . the determination is not reviewable under [19 U.S.C. § 1516a(a).]” 	19
U.S.C. § 1516a(g)(1)(B), (2)(A). 	Nonetheless, 19 U.S.C. § 1516a(g)(3) enumerates
2 Despite its invocation of Building Systems, none of the parties in this case raise the
threshold issue raised in Building Systems, specifically whether this Court has the
power to determine its own jurisdiction. See generally Bldg. Sys. de Mexico, S.A. de
C.V. v. United States, 44 CIT __, Slip Op. 20-155 (Nov. 3, 2020) (“Building Systems”).
Building Systems concluded that the Court had the power to determine its own
jurisdiction. See Building Systems, 44 CIT at __, Slip Op. 20-155 at 6–11.
3 19 U.S.C. § 1516a(a)(2)(B)(ii) provides for review of
[a] 	final 	negative 	determination 	by 	the 	administering 	authority 	or 	the
Commission under section [19 U.S.C. §§ 1671d or 1673d], including, at the
option of the appellant, any part of a final affirmative determination which
specifically excludes any company or product.
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certain exceptions, 4 and permits judicial review of “a determination as to which
neither the United States nor the relevant [free trade area (“FTA”)] country requested
review[.]” Id. at § 1516a(g)(3)(A)(i).
The statute also establishes a mechanism for private parties to seek binational
review of Commerce’s final determination in NAFTA cases. 	Namely, 19 U.S.C.
§ 3434(c) provides, in pertinent part, that
a person, within the meaning of paragraph 5 of article 1904, may request
a binational panel review of such determination by filing such a request
with the United States Secretary . . . [and] [t]he receipt of such request
by the United States Secretary shall be deemed to be a request for
binational panel review within the meaning of article 1904.
19 U.S.C. § 3434(c). Under article 1904(5) of the NAFTA
4 19 U.S.C. § 1516a(g)(3) Exception to exclusive binational panel review.
(A) In general. A determination is reviewable under subsection (a) if the
determination sought to be reviewed is--
(i) a determination as to which neither the United States nor the
relevant FTA country requested review by a binational panel pursuant
to article 1904 of the NAFTA or of the Agreement,
(ii) a revised determination issued as a direct result of judicial review,
commenced pursuant to subsection (a), if neither the United States nor
the 	relevant 	FTA 	country 	requested 	review 	of 	the 	original
determination,
(iii) a determination issued as a direct result of judicial review that was
commenced pursuant to subsection (a) prior to the entry into force of the
NAFTA or of the Agreement,
(iv) a determination which a binational panel has determined is not
reviewable by the binational panel,
(v) a determination as to which binational panel review has terminated
pursuant to paragraph 12 of article 1905 of the NAFTA, or
(vi) a determination as to which extraordinary challenge committee
review has terminated pursuant to paragraph 12 of article 1905 of the
NAFTA.
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[a]n involved Party on its own initiative may request review of a final
determination by a panel and shall, on request of a person who would
otherwise be entitled under the law of the importing Party to commence
domestic procedures for judicial review of that final determination,
request such review.
NAFTA art. 1904(5), U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289, 683 (1993).
The court cannot exercise jurisdiction over AISC’s complaint because no
exception to the preclusion of judicial review under § 1516a(g) applies. 	There is no
dispute as to whether the timely request for binational panel review of Commerce’s
final determination in this case is deemed filed by an FTA country under NAFTA art.
1904(5). 5 Section 1516a(g) thus precludes the court from exercising jurisdiction over
the complaint.
CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendant’s motion to dismiss for lack of subject-matter
jurisdiction is granted; and it is further
5 AISC’s claim that the jurisdictional issues in this case and in Building Systems, Ct.
No. 20-00069 are identical is mistaken. See Pl.’s Resp. at 3–4. Namely, the court is
not confronted with the same question of whether the request for binational panel
review of Commerce’s final determination is deemed to have been made by an FTA
country pursuant to NAFTA art. 1904(5). See Pl.’s Resp. Opp’n Mot. to Dismiss, Aug.
13, 2020, ECF No. 42 (from Dkt. Ct. No. 20-00069). In Building Systems, by contrast,
the Court found that a party given a zero margin, without more, lacked an injury in
fact as required for standing and consequently its request for NAFTA binational
panel review could not be deemed to have been made by an FTA country. 	See
Building Systems, 44 CIT at __, Slip Op. 20-155 at 14–15; but see Final Results, 85
Fed. Reg. at 5,374 (assigning CBA a dumping margin of 6.70 percent).
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ORDERED that the case is dismissed. Judgment will enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	November 3, 2020
New York, New York
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