author: GENE CARTER, District Judge.

text:
    CUMBERLAND VILLAGE HOUSING ASSOCIATES, and United States of America through Dept. of Agriculture & FmHA, v. INHABITANTS OF the TOWN OF CUMBERLAND, Robert Cram, Mrs. Beverly Johnson, Mr. Richard Moon, Mr. Daniel Bates, Mrs. Daphne Warren, Mr. Robert Humphreys and Mr. Alvin K. Ahlers, serving in their official capacities as members of the Cumberland Town Council.
    Civ. No. 84-0315 P.
    United States District Court, D. Maine.
    April 3, 1985.

      Peter W. Culley, James B. Haines, Jr., Hewes, Culley & Beals, Kevin Gaynor, Asst. U.S. Atty., Portland, Me., for plaintiff.
    Kenneth M. Cole, III, Brian C. Shaw, Jensen, Baird, Gardner & Henry, Portland, Me., for defendant.
   MEMORANDUM OF DECISION DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

GENE CARTER, District Judge.

Plaintiff Cumberland Village Housing Associates (Cumberland Village) is a limited partnership which has applied to appropriate agencies of defendant Inhabitants of the Town of Cumberland (the Town) for approval of a 70-unit apartment complex. The Town’s Planning Board reviewed the subdivision application and, in accordance with Section 7.15 of the Town’s subdivision ordinance, referred to the Town Council the question as to whether the proposed development would “be a burden” on the Town’s séwer system. On March 26, 1984, the Town Council, noting the limited capacity of the sewer system, enacted a 90-day moratorium on action by the Planning Board with respect to applications for buildings that proposed to use the sewer system.

On June 25, 1984, the Town Council adopted a formula for allocation of remaining sewer user units and decided to inform the Planning Board that the Cumberland Village Project would impose an “undue burden” on the existing sewer system. After obtaining a clarification of the Town Council’s action with respect to Cumberland Village, the Planning Board advised Cumberland Village, on or after July 11, 1984, that it would take no further action on its subdivision application.

Cumberland Village brought this action challenging the Town’s rejection of its subdivision application on federal and state law grounds. The Town has moved for summary judgment with respect to the pendent state law claims, set forth in Counts III, IV, V and VI of the complaint, on the ground that the action is untimely under Me.R.Civ.P. 80B(b).

Me.R.Civ.P. 80B provides a procedure for state superior court review of governmental action. Rule 80B(b) sets forth the time limitation for seeking judicial review:

(b) Time Limits; Stay. The time within which review may be sought shall be as provided by statute, except that if no time limit is specified by statute, the complaint shall be filed within 30 days after notice of any action or refusal to act of which review is sought unless the court enlarges the time in accordance with Rule 6(b), and, in the event of a failure to act, within six months after expiration of the time in which action should reasonably have occurred. Except as otherwise provided by statute, the filing of the complaint does not stay any action of which review is sought, but the court may order a stay upon such terms as it deems proper.

Neither party asserts that any statutory limitation period applies to Cumberland Village’s state law claims. Accordingly, if Rule 80B(b) applies to this action, plaintiffs were required to file their complaint within 30 days of the action of which they complain.

Cumberland Village argues that Rule 80B(b) should not be applied to state claims filed in a federal court. Cumberland Village cites no direct or analogous authority in support of this view. Cumberland Village has offered no compelling reason why the general principles regarding choice of law applicable to pendent claims should not be applied in this case.

In the exercise of pendent jurisdiction over state law claims, a federal court is to apply the governing substantive state law. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Moreover, a federal court must apply the appropriate state statute of limitations to the pendent state law claims. Reid v. Madison, 455 F.Supp. 1066 (E.D.Va.1978); Stringer v. Commonwealth of Pennsylvania, Department of Community Affairs, Bureau of Human Resources, 446 F.Supp. 704 (M.D.Pa.1978).

Maine has no specific statute of limitations applicable to the pendent claims in this case. Me.R.Civ.P. 80B(b), however, dictates that any complaint challenging a governmental action which is not governed by a statutory limitation period shall be filed within 30 days of notice of such action. It will not aid analysis of this issue to attempt to characterize this limitation period as “substantive” or “procedural.” See Guaranty Trust Co. v. York, 326 U.S. 99, 108-09, 65 S.Ct. 1464, 1469-70, 89 L.Ed. 2079 (1945). It is the only existing time provision, state or federal, identified by the parties which could be applied in this case. As long as it offends no federal interest, where the only source of this court’s jurisdiction over the state law claims is the fact that they are appended to federal claims, this court should apply the limitations provision that would be applied by Maine state courts. Here, plaintiff has not shown that any federal interest is offended by applying Me.R.Civ.P. 80B(b), and such application will ensure consistency of results in state and federal courts with respect to state law claims.

The court now must determine whether this action was timely filed under Me.R.Civ.P. 80B(b). The parties disagree, for purposes of applying Rule 80B(b), as to when Cumberland Village’s cause of action accrued and as to when this action was commenced.

The pending action is the second of two filed by Cumberland Village as a result of the Town’s action. Cumberland Village filed its first complaint (Docket No. 84-0237-P) on July 27, 1984. In that action Cumberland Village named the Town, the Farmers Home Administration (FmHA), and officials of FmHA as defendants. Cumberland Village filed the pending action (Docket No. 84-0315-P) on September 27, 1984. FmHA joined Cumberland Village as a plaintiff in the second action, and the members of the Town Council were named as additional defendants. On November 20, 1984, the first action was dismissed by stipulation, without prejudice.

Cumberland Village argues that the filing of the first complaint tolled the limitations period for purposes of determining the timeliness of the pending action. The Town contends that the filing of the first complaint is irrelevant to determination of the timeliness of the pending action.

This case is distinguishable from instances in which a party belatedly attempts to bring a second action after a timely first action fails. See, e.g., Moore v. El Paso County, Texas, 660 F.2d 586 (5th Cir.1981). Here, Cumberland Village filed the second action before it voluntarily dismissed the first action. Cumberland Village agreed to dismiss the first action after it learned that FmHA, a defendant in the first action, had interests similar to those of Cumberland Village and was willing to pursue the matter as a plaintiff. This change presumably could have been accomplished by amendment of the pleadings, but Cumberland Village instead elected to file a separate complaint. Had the change been effected by amendment, there is no question that the action against the Town would have commenced on July 27, 1984.

In respect to the claims made against the Town, the second complaint is not materially different from the first. The pending action is a “new proceeding” only in a formal sense. In substance, Cumberland Village’s cause of action against the Town has been pending continually since July 27, 1984. Under these unique circumstances, in which a second, substantially identical (in respect to the claims against the Town) action was filed before the dismissal of the original action, the original action was dismissed by agreement without prejudice, and the defendant is in no sense prejudiced, the filing of the pending action relates back to the date of the filing of the first action for the purpose of determining timeliness under Me.R.Civ.P. 80B(b).

Still to be resolved is the parties’ dispute over the date the cause of action accrued. The Town contends that Cumberland Village’s cause of action accrued on June 25, 1984, when the Town Council adopted a sewer allocation scheme that effectively excluded Cumberland Village and voted to advise the Planning Board that Cumberland Village’s development would impose an undue burden on the sewer system. Under this view, an action commencing July 27, 1984 would be untimely. Cumberland Village argues that its cause of action accrued on or after July 11, 1984, when the Planning Board chairman decided to take no further action on the proposed development. Under this view, the pending action was timely filed for purposes of Rule 80B(b).

The language of Me.R.Civ.P. 80B(b) should be construed broadly. Sawin v. Town of Winslow, 253 A.2d 694, 698 (Me. 1969). In Sawin, the defendant school committee notified a teacher on April 12, 1967 that he was to receive a salary which the teacher alleged violated an established salary schedule. The teacher did not file his complaint under Rule 80B, however, until September 20, 1967. The Law Court found that the complaint was timely because the effective date of the salary schedule was September 1, 1967. The final action of the school committee, for purposes of Rule 80B, occurred on the effective date of the salary schedule.

In this case, Cumberland Village contends that it was not aware of the import of the Town Council’s actions of June 25, 1984 until on or after July 11, 1984. At the very least, there exists a genuine issue of fact material to the determination of the date that Cumberland Village received notice of a final action by the Town, and the Town’s Motion for Summary Judgment may be denied on this basis. No further factual inquiry is necessary, however, to finally resolve this issue. Even when the facts are postured most favorably to the Town, it is clear that the 30-day limitation period of Rule 80B(b) did not begin to run until July 11, 1984. Assuming that Cumberland Village must have anticipated that the Town Council’s actions of June 25, 1984 would cause the Planning Board to deny its subdivision application and that Cumberland Village is directly challenging the Town Council’s action and not that of the Planning Board, final action for purposes of Rule 80B(b) did not occur until the Planning Board denied the application. The action of the Town became final when the appropriate board having authority over the matter, the Planning Board, denied the application. The mere fact that the primary conduct alleged to be illegal occurred before the Town took final action does not mean that judicial review can be obtained before the action becomes final. Cf. Sawin, supra.

Because the cause of action did not accrue until on or after July 11, 1984 and the commencement of this action relates back to July 27, 1984 for purposes of Rule 80B(b), this action was timely filed.

Accordingly, it is ORDERED that Defendant’s Motion For Summary Judgment is hereby DENIED.

      . Duchek v. Jacobi, 646 F.2d 415 (9th Cir.1981), the one case cited by Cumberland Village, held that a California state statute providing that proceedings for enforcement of a judgment "may” be brought in the state superior court did not prevent the federal court from exercising jurisdiction over such actions. The court reasoned that Fed.R.Civ.P. 69(a) could not "be read to authorize a direct restriction on the federal district court’s jurisdiction to enforce its judgments....” Id. at 418 (emphasis added). Duchek involved a party’s attempt to utilize a state statute to prevent a federal court from enforcing the judgment of a federal court; thus the proposed construction of the state statute collided with an important federal interest as well as the manifest purpose of Fed.R.Civ.P. 69(a). In this case, no party asserts that application of the 30-day limitation period of Me.R.Civ.P. 80B(b) conflicts with any federal interests. Moreover, the appellant in Duchek sought to divest the federal court of jurisdiction. Here, application of Rule 80B(b) would merely set a time limit for commencement of an action; the Town does not assert that this court lacks jurisdiction over timely filed actions.

      . The court notes that even where federal jurisdiction is founded upon a federal question, a federal court applies the limitation period of the forum state if there is no applicable federal statutory limitation period. See, e.g., Small v. Inhabitants of the City of Belfast, 547 F.Supp. 761, 765 (D.Me.1982).

      . See Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1944). The Supreme Court held in Guaranty Trust that a state statute of limitations must be applied by a federal court in a diversity case because it would affect the outcome of the litigation. Id. at 109, 65 S.Ct. at 1469. The "outcome-determinative” test of Guaranty Trust was modified by the Supreme Court in the subsequent cases of Byrd v. Blue Ridge Cooperative, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958) and Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). In Byrd, the Supreme Court held that a federal rule governing the division of functions between judge and jury may be applied to a state-created cause of action because an important federal judicial policy was implicated. In this case, it has not been shown that application of the state limitation period conflicts with any federal interest. In Hanna, the Supreme Court held that the Federal Rules of Civil Procedure govern in a diversity action even though they may conflict with state rules. Here, no Federal Rule of Procedure is implicated. In sum, the reasons for departing from the Guaranty Trust approach are not present in this case.

      . The claims against the individual defendants were dismissed by agreement on November 29, 1984.


source: Caselaw Access Project

author: NANGLE, District Judge.

license: Public Domain

text:
    Michael A. PIERSON, Plaintiff, v. NORCLIFF THAYER, INC., Defendant.
    No. 84-1060C(1).
    United States District Court, E.D. Missouri, E.D.
    April 4, 1985.

      E. Thomas Liese, St. Louis, Mo., for plaintiff.
    Robert C. Ely, St. Louis, Mo., for defendant.
   MEMORANDUM

NANGLE, District Judge.

Plaintiff Michael Pierson brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. He alleges that defendant engaged in race discrimination by terminating him for his employment and by affording him less favorable job assignments than white employees.

This case was tried to the Court sitting without a jury. The Court having considered the pleadings, the testimony of witnesses, the documents in evidence, and the stipulations of the parties, and being fully advised in the premises, hereby makes the following findings of fact and conclusions of law, as required by Rule 52 of the Federal Rules of Civil Procedure.

A. FINDINGS OF FACT

1. Plaintiff Michael Pierson is a black male resident of the State of Illinois and was at all times relevant herein a citizen of the United States.

2. Defendant Norcliff Thayer is a Delaware corporation which does business in St. Louis, Missouri. Defendant is a manufacturer of cosmetics and other products.

3. Plaintiff was employed by defendant from August 15, 1979, to August 30, 1983, as a material handler. He was terminated on the latter date for the stated reasons that he had a poor attendance record and his job performance was unsatisfactory.

4. As a material handler, plaintiff was responsible for receiving material which passed through a chute from the second floor of defendant’s plant to the first floor. Plaintiff was additionally charged with the duties of stacking the material on pallets, transporting the pallets to the shipping area of the plant and attaching load bills to each pallet.

5. At the time of the termination, plaintiff’s department was comprised of ten individuals, three white supervisors and seven material handlers. In addition, there was a black group leader. Of the material handlers, only one, John Lato was white. Lou Veres, Tim Carpenter and.Ray Fog were the white supervisors.

6. Although plaintiff and John Lato held the same job description, from time to time Lato was assigned additional tasks such as preparing orders on damaged goods, conducting building inspections and going to the post office. Plaintiff considered these tasks to be marginally desirable.

7. On one occasion, plaintiff’s supervisor Tim Carpenter ordered plaintiff to remove some cases of material from the work area, when this duty could just as easily have been assigned to John Lato.

8. Plaintiff requested tuition reimbursement of the company for some classes he proposed to take. Plaintiff never made a formal application for such reimbursement, however. Although plaintiff asserts that he was discouraged from applying for such reimbursement, there is no evidence to support this contention.

9. Some racial slurs were directed to plaintiff by his supervisory staff. Lou Veres referred to plaintiff as a nigger. Plaintiff testified regarding a statement made by Ray Fog to the effect that if he (Fog) had matches, he would burn all the blacks in East St. Louis. Fog denied having made this remark, however. Fog is attributed with having additionally stated that he did not like blacks moving into his neighborhood. Also, a temporary employee alluded to plaintiff as a nigger, and John Lato directed a derogatory remark towards plaintiff, as well.

10. Plaintiff’s attendance record was very poor. On March 4, 1981, plaintiff was notified regarding the third occurrence of his failure to inform defendant of an impending absence. On December 13, 1982, plaintiff was warned about his excessive break time, tardiness and failure to properly fill out supply tickets. On June 16, 1983, he received notice that he had been charged with five unexcused absences. On August 1 and 2, 1983, plaintiff was absent from work but was tardy in notifying his employer of the absence. He was absent on August 3, without notice, and on August 4, he was likewise absent with a late explanation. On August 25, 1983, plaintiff took an extended lunch break of 20 minutes, and on the following work day, August 29, plaintiff was late to work.

11. Apart from his poor attendance, plaintiff received discipline for other reasons. He dumped some trash into a hopper without informing his superiors. This incident cost defendant Company $9,600.00. He also failed to supply some tube line as instructed. On another occasion, plaintiff refused to do a specific assignment. He then claimed to be sick, and his supervisor was compelled to perform the assigned duties.

12. On August 29, 1983, when plaintiff called in late directly after he had been warned of extended lunch breaks and had received some unexcused absences, the decision to terminate him was made.

13. Plaintiff filed a timely complaint with the EEOC against defendant in accordance with 42 U.S.C. § 2000e-5. He received an unfavorable result and subsequently filed a complaint with this Court.

B. CONCLUSIONS OF LAW

This Court has jurisdiction of this case pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f)(3). Defendant is an employer as defined in 42 U.S.C. § 2000e(b).

Plaintiff first alleges that his termination from employment with defendant constituted unlawful race discrimination. In a Title VII claim, the plaintiff has the initial burden of establishing a prima facie case of discrimination. If the plaintiff is successful, the defendant must articulate a legitimate non-discriminatory reason for its actions. The defendant’s evidence need only raise a genuine issue of fact regarding discrimination. The burden of coming forth with additional evidence then shifts back to the plaintiff. The plaintiff must show by a preponderance of the evidence that defendant’s explanation was merely a pretext for discrimination within the meaning of the statute. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Coleman v. Missouri Pacific Railroad Co., 622 F.2d 408 (8th Cir.1980). Plaintiff bears the ultimate burden of establishing discrimination. United States Postal Service, Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); Jones v. I.T.T. Educational Services, Inc., 587 F.Supp. 1533, 1538 (E.D.Mo.1984).

This Court concludes that plaintiff has established a prima facie case of discriminatory discharge in that he established (1) he was a member of a protected class, (2) he was capable of performing the job, and (3) he was discharged from the job. Johnson v. Bunny Bread Co., 646 F.2d 1250, 1253 (8th Cir.1981); Osborne v. Cleland, 620 F.2d 195, 198 (8th Cir.1980).

The next step in the analysis is whether defendant Company has articulated a legitimate non-discriminatory reason for the discharge of plaintiff, sufficient to raise a genuine factual issue as to whether plaintiff was discriminated against. Texas Department of Community Affairs v. Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094. This Court concludes that defendant has met this burden. Defendant presented testimony and exhibits regarding plaintiff’s attendance record with the Company. Plaintiff indeed held a long history of unexcused absences and tardiness. His discharge was finally prompted by his late appearance on the day following a period of unexcused absences. This attendance record was sufficiently poor to justify the discharge. In addition, plaintiff’s personnel file is replete with counsellings and reprimands regarding his job performance. There is no dispute that plaintiff dumped trash into a hopper or that he failed to deliver the tube line.

Finally, plaintiff is unsuccessful in establishing that defendant’s explanation is a pretext for its actual intent to discriminate. Plaintiff did not introduce any evidence that the treatment he received was different from that of white employees. He introduced the attendance record of John Lato, yet Mr. Lato had been employed longer with defendant Company than plaintiff, and did not have the same number of unexcused absences as plaintiff. See Johnson v. Bunny Bread Co., 646 F.2d at 1255. Furthermore, there is no evidence that Mr. Lato’s job performance was similar to plaintiffs.

Plaintiff attempts to prove that his termination was motivated by racial concerns through evidence that racial slurs were directed towards him. This evidence is not sufficient to establish pretext, however. The termination was in response to plaintiffs tardiness after a series of unexcused absences. Furthermore, the decision to terminate was reached by Bob Morris, the Company vice president upon the recommendation of Tom Faciszewski, the personnel manager. Plaintiff submitted nothing to imply that these particular individuals were engaged in the practice of directing derogatory language towards him or harbored a racial bias against him. Nor does this Court deem the isolated instances of racial slurs on behalf of several coemployees to establish a pretext for the stated reasons of termination, given plaintiffs attendance record and other occasions of unsatisfactory job performance.

Plaintiff additionally argues that defendant violated 42 U.S.C. § 2000e-2 by racially harassing him. He points to the derogatory language used by his fellow employees, and also contends that he was discouraged from applying for tuition reimbursement, and that he received discriminatory job assignments. From the outset, the record does not support the conclusion that plaintiff was in fact discouraged from applying for tuition refunds. Also, plaintiff does not deem the assignment of additional tasks to Mr. Lato to be sufficiently desirable as to render the assignments discriminatory. Mr. Lato did in fact have more seniority than plaintiff. Furthermore, the derogatory comments do not rise to the level of a violation under Title VII. A working environment dominated by racial slurs, however inexcusable, does constitute a violation of Title VII. An infrequent and sporadic use of such language among employees does not trigger Title VII’s protections, however. Id. at 1257; Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir.1978); Johnson v. Richmond County, 507 F.Supp. 993, 996 (S.D.Ga.1981). Plaintiff could only point to four specific instances when racially derogatory language was used. This Court is not convinced that plaintiff was subject to such discriminatory working conditions as are violative of Title VII. Johnson v. Bunny Bread Co., 646 F.2d at 1257; Cariddi v. Kansas City Chiefs Football Club, Inc., 568 F.2d 87, 88 (8th Cir.1977). For these reasons, plaintiff is not entitled to Title VII relief.

ORDER

IT IS HEREBY ORDERED, ADJUDGED and DECREED that judgment be and is entered for defendant on plaintiff's complaint and said complaint be and is dismissed with prejudice at plaintiff’s costs.


author: KRAM, District Judge.

text:
    UNITED STATES of America v. Iris RAMOS, Defendant.
    No. S 84 Cr. 0281 (SWK).
    United States District Court, S.D. New York.
    April 11, 1985.

      See also 588 F.Supp. 1223.
    Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., New York City by David Spears, Asst. U.S. Atty., for U.S.
    Frederick H. Block, New York City, for defendant.
   MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

The above-captioned action is before this Court upon defendant’s motion, pursuant to Rule 35 of the Federal Rules of Criminal Procedure, for an order reducing the sentence heretofore imposed.

Defendant was convicted after a six-day jury trial of all three counts contained in the superseding indictment, as follows: one count of conspiring to make false statements and file false documents required under the immigration laws, in violation of 18 U.S.C. §§ 371, 1001, and 1546; and two counts of knowingly making and using false documents in petitions filed with the Immigration and Naturalization Service (“INS”), in violation of 18 U.S.C. § 1001. On September 13, 1984, this Court sentenced the defendant to incarceration for a term of five years on each count, all terms to run concurrently. Defendant is currently serving her sentence.

A motion for the reduction of sentence rests within the sound discretion of the trial judge. See United States v. Lacey, 661 F.2d 1021 (5th Cir.1981); see also United States v. Serrano, No. 83 Cr. 493, slip op. (S.D.N.Y. March 27, 1984). In urging this Court to reduce her sentence, defendant cites the following: the absence of any prior criminal record; her age and family situation (unwed mother of two young children); and the sentence imposed on a co-schemer. On direct appeal from the conviction herein, the Court of Appeals urged me “carefully to reconsider reduction of the sentence if appropriate motion is made.” The Court has done so, but continues to believe that its sentence was just in light of the evidence educed at trial.

The evidence at trial showed that Ramos was an active participant in a scheme to secure permanent resident status for aliens by helping to arrange sham marriages. Together with at least one co-schemer, Sinecio Brown-Cabrera, Ramos located United States citizens willing to “marry” aliens seeking permanent residence. Ramos and Brown organized these “marriages,” witnessed them, and then signed and notarized permanent residence petitions intended to fraudulently secure permanent residence status for illegal aliens—for a fee.

The ploy devised by Ramos and Brown was enacted and re-enacted many times. Illegal aliens would work countless hours, at below standard wages, to earn enough to pay the fee. Many times, however, the aliens hopes were dashed and permanent residence status was denied. Nonetheless, Ramos and Brown dispassionately continued about their illegal business.

The evidence clearly established that Ramos was a knowing participant in this scheme. She helped arrange marriages wherein the same U.S. citizen would marry several different aliens. She would witness those weddings, and would even notarize petitions containing an averment that the citizen was not married to any other individual.

Ramos testified at trial. She brazenly denied any knowledge of the scheme and any participation therein. Given the overwhelming weight of the evidence against her, this testimony could only be seen as blatant perjury.

In moving for a reduction of sentence, a defendant should assert new grounds, or changes in circumstances, not before the Court at the time of sentencing, which warrant the reduction of her sentence. See United States v. Serrano, No. 83 Cr. 493, slip op. at 2 (S.D.N.Y. March 27, 1984); see also United States v. Sicenavage, 496 F.Supp. 121, 125 (E.D.Pa.1980). The defendant has not done so in this case.

This Court, in imposing its sentence, considered the defendant’s family situation. I recognize that prison sentences impose a hardship on innocent family members, and I am extremely sympathetic with the defendant and her family for the hardships they are feeling. All of these concerns, however, were essentially before the Court, and were taken into account, at the time sentence was imposed.

Moreover, the Court was aware of, and took into consideration, the sentence imposed on Brown—arguably the more culpable member of the scheme. It is not within the province of this Court to question another district judge in the exercise of his discretion when imposing sentence upon a defendant who pleads guilty to one count in satisfaction of a multiple-count indictment. I considered the factors which I believed were relevant in sentencing the defendant before me. This Court was powerfully moved by the severity of the crimes defendant committed, by the dispassionate manner in which illegal aliens were taken for hard-earned money in misguided reliance upon defendant’s ability to illegally secure permanent residence status, by the defendant’s lack of remorse and the ominous indications that had regarding her ability and willingness to be rehabilitated, and, most significantly, by the defendant’s indignant perjurious manner.

In sum, the Court abided by the Court of Appeals admonishment and carefully reconsidered the sentence imposed in this case. Nonetheless, the Court felt, and, upon such reconsideration continues to feel, that the sentence imposed was just in light of the serious crime the defendant has committed. Accordingly, defendant’s motion for a reduction of sentence is hereby DENIED.

SO ORDERED.

       In spite of defendant’s contentions, the evidence was not at all clear at trial that she received no portion of these fees. In any event, given her relationship with Brown, she clearly benefitted from the receipt of these fees.


author: RESTANI, Judge:

text:
    STRIDE RITE CORP., Plaintiff, v. The UNITED STATES, Defendant.
    Court No. 81-5-00631.
    United States Court of International Trade.
    Jan. 9, 1985.

      Doherty, Melahn & Middleton, William E. Melahn, Boston, Mass., for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office and Jerry P. Wiskin, U.S. Dept. of Justice, Civil Div., Washington, D.C., for defendant.
   RESTANI, Judge:

Plaintiff, an importer of children’s and youths’ footwear brought this action to contest the Customs Service’s (“Customs”) valuation of duties on its merchandise according to American Selling Price (“ASP”). ASP is a method of valuation formerly found at 19 U.S.C. § 1402(a)(4) (1976) which was repealed in 1979. Plaintiff’s goods were exported between December 16, 1977 and March 9, 1978 and entered at the port of Boston, Massachusetts. Using the Junior Jogger made by the Bata Shoe Company, an American manufacturer, as the prototype, Customs appraised plaintiffs children’s and infants’ footwear at $5.30 per pair, less 2% packed and appraised the youths’ and boys’ products at $5.85 per pair, less 2% packed. Contesting the use of the Bata prototype, plaintiff argues that there was no ASP in this case and therefore the correct basis of appraisement was Export Value, 19 U.S.C. § 1402(d) (1976) (repealed 1979) or alternatively United States Value, 19 U.S.C. § 1402(e) (1976) (repealed 1979). Only if the ASP valuation was improper, must the court consider plaintiff’s proposed valuations. 19 U.S.C. § 1402(a) (1976) (repealed 1979).

The ASP “method of valuation ignore[d] the price of the imported article and turned instead to the price at which such articles of American manufacture were freely offered for sale for domestic consumption.” Converse Rubber Co. v. United States, 64 Cust.Ct. 779, 782, 314 F.Supp. 1241, 1243 (1970), aff’d, 66 Cust.Ct. 652, 328 F.Supp. 493 (1971). ASP appraisement was designed to protect domestic manufacturers of limited classifications of goods, including certain coal tar products and certain goods, “by virtue of a Presidential proclamation issued under section 336 of the Tariff Act of 1930 (19 U.S.C. § 1336)” R. Sturm, Customs Law & Administration § 44.1 (2d ed. 1982), citing Bestway Products, Inc. v. United States, 58 Cust.Ct. 613 (1967). Among the classifications of goods to which ASP appraisement applied was certain footwear “wholly or in chief value of India rubber or substitutes for rubber.” T.D. 54,521; see also E. Dillingham, Inc. v. United States, 67 Cust.Ct. 457, 328 F.Supp. 1392 (1971). At the operative time in this case, ASP valuation was applied to footwear with a rubber portion over fifty percent by weight and classifiable under the Tariff Schedules of the United States (“TSUS”) 700.60 according to headnote 3(b), Part 1A, Schedule 7 of the TSUS. It is, of course, that classification which is relevant in the instant case. Pursuant to § 336, like or similar merchandise was the focal point of ASP law and the standard for selection by Customs of a prototype American article.

It is upon the “like or similar” requirement that plaintiff bases its first attack on the appraisement. Plaintiff’s merchandise, the Stride-Rite Flyer is a rubber soled shoe with a canvas upper. Customs’s prototype, the Bata Junior Jogger, is also a rubber soled shoe but has a nylon upper. The shoes are both of vulcanized rubber construction, the soles of both shoes are calendared with a series of “zig-zag” striations and indentations, and both shoes appear to be modeled on the athletic shoes currently worn by adults for running and jogging.

The terms “like” and “similar” have been subject to judicial interpretation. The two terms present separate standards. The term “like” means the same or identical. Albert F. Maurer Co. v. United States, 51 CCPA 114, 117 (1964). The difference between the nylon and canvas uppers, as well as ornamental design detail, prevents the subject products and the prototype from being “like” products. Hence, the question is only whether the two products are similar. Id.

Courts have delineated a four part test for “similarity” in which the factors to be considered are:

(1) similarity of material

(2) commercial interchangeability

(3) adaptability to the same use

(4) competitive character

A. Zerkowitz & Co. v. United States, 58 CCPA 60, 65, 435 F.2d 576, 580 reh’g. denied, 58 CCPA 72, 438 F.2d 1240 (1970), cert. denied, 404 U.S. 831, 92 S.Ct. 72, 30 L.Ed.2d 60 (1971), dismissed on remand, 69 Cust.Ct. 228 (1972); United States v. Japan Import Co., 2 Cust.Ct. 926, 932 (1939). In the Zerkowitz case, the Court of Customs and Patent Appeals stressed the commercial interchangeability factor when it explained:

... [S]imilarity under 19 USC 1336 is, as our predecessor court wrote in United States v. Wecker & Co., 16 Ct.Cust.Appls. 220, 225, T.D. 42837 (1928),
... to be measured by much the same homely rule that applies to the prospective customer who enters a store seeking some utilitarian article of a certain specific name and style; he finds the article requested is not in stock but that another article, of approximately the same price and which will perform the same functions, is capable of the same use and may be substituted therefor, is available. Such an article is a similar article, notwithstanding the price, the methods of construction, and the component materials may be somewhat, different; but, for all utilitarian purposes, one is a substitute for the other.
And, we would now add, it is approximately what the customer wanted and acceptable to him as a substitute.

58 CCPA at 67-68.

At trial plaintiff sought to differentiate between its canvas shoe and the nylon prototype on two grounds in order to demonstrate that the shoes did not meet the four part test. First, plaintiff’s witness Dr. Park stated that the differences between the material in the uppers of the shoes made the prototype far more durable but allowed only plaintiff’s Flyer to be merchandised as washable. Stride-Rite vice-president for merchandising, Mark Coeozza, testified that the Flyer was specifically made of canvas so that it could be washed. Plaintiff thus argued that washability prevented commercial interchangeability.

Defendant’s witnesses, on the other hand, presented the view that washability was not a major difference and would not prevent the shoes from being commercially interchangeable. Furthermore, the court gives little weight to Dr. Park’s testimony on the issue of commercial interchangeability because he was shown to have no experience in marketing shoes. The burden was on plaintiff to prove a differentiation in the mind of the ultimate purchaser of the shoes by a preponderance of evidence, and that burden was not met here. Cf. Park Avenue Imports Co. v. United States, 62 Cust.Ct. 1035, 1043, 299 F.Supp. 528, 534 (1969).

Second, plaintiff argued that the shoes were not designed for the same use because the prototype is a “dress” shoe while the subject product is a play shoe. The testimony of plaintiff’s own witnesses is inconsistent on this issue. And defendant’s witnesses testified to the contrary. Furthermore, the physical evidence of the merchandise itself indicates the article in issue is a children’s play shoe. Thus, plaintiff has failed to meet its burden. Accordingly, the court finds that the subject product, the Flyer, and Customs prototype, the Junior Jogger, are “similar” for purposes of the ASP law.

A finding of similarity alone is not enough, however, to sustain an ASP appraisement. For not only must the prototype be similar to the subject product, but it must be freely offered for sale in the principal market of the United States. 19 U.S.C. § 1402(g). Plaintiff makes several challenges to Customs’ finding that the Bata Junior Jogger was freely offered for sale.

In the first instance, plaintiff argues that Customs relied upon incomplete, inaccurate, and vague information in reaching its determination concerning the Bata shoe. Plaintiff argues that Customs’ decision was based on answers to a questionnaire (PI. Exhibit 5) filed by Bata executive Lee Kursewicz which was not well researched and which did not contain specific answers. Although there was testimony demonstrating that Mr. Kursewicz did not examine company records when filling out the questionnaire, the testimony at trial showed the questionnaire to be essentially accurate. Thus, the presumption of correctness given to the appraiser’s decision was not overcome. See Hudson Shipping Co. v. United States, 43 CCPA 19, 28 (1955).

As its next argument on the freely offered for sale issue plaintiff urges that Bata did not follow its own price list because it provided discounts and different payment schemes to certain purchasers. Plaintiff’s witness Mr. Weedon testified that he examined Bata’s files and found several variances from the price list submitted to Customs. Discounts alone, however, do not mandate a finding that a product was not freely offered. See Aceto Chemical Co. v. United States, 51 CCPA 122, 125 (1964).

The Aceto court held that when a chemical company sold some of its product below list price and some at list price but offered its product to all purchasers at list and allowed any purchaser to buy the product at the list price, the list price would be used as a “freely sold” price. Id. Here the evidence at trial demonstrated that there were substantial sales at list price terms and discounts or different payment terms were given for legitimate business reasons or were the result of inadvertence. Thus, despite the presence of a few instances of deviations from price list terms in the instant case, the prototype may be said to have been freely offered for sale at the list price as long as the prototype was available to anyone desiring to purchase it at that price.

Plaintiff next argues that Bata divided its operation into two divisions, an “in stock” department and a “make-up” department, but restricted the sale of “essentially the same shoe” by the make-up department. Bata’s former president Mr. Stiegle explained that the “branded” or “in-stock” division sold products with Bata’s own trademark affixed while the make-up division manufactured shoes with specific customers’ trademarks. Testimony indicated that the shoe manufactured by the make-up division sold for twenty-five percent less than the in-stock shoe. Also, there appears to be no disagreement that the make-up shoes were not freely offered for sale but that instead, prices were individually negotiated. This evidence, however, does not defeat Customs’ ASP appraisal. The appraisal was based purely on the shoe marketed under Bata’s own name from its in-stock division. The specific Bata product used as a prototype was not shown to be anything but freely offered to any purchaser. The specially made products, even if quite similar to the Bata brand name goods, were not utilized by Customs as a prototype. Plaintiff’s argument concerning the two divisions is thus irrelevant.

Assuming arguendo that the makeup shoe and the prototype were not different shoes, ASP valuation based on the prototype is still appropriate. The make-up division sold shoes in large quantities. Where there are substantial sales at list price, discounts from list price based on large volume purchases will not prevent the utilization of list price as ASP. See G. Gennert (Inc.) v. United States, 18 CCPA 12, 15 (1930) (decided under Tariff Act of 1922). See also Aceto Chemical Co. v. United States, 51 CCPA at 125; United States v. Mexican Products Co., 28 CCPA at 90. Thus, the only question remaining which relates to the “freely offered” issue is whether a class of potential purchasers was excluded by Bata from buying the prototype.

When a seller refuses to sell at list price to a certain customer or class of customers, the product is not freely offered. See Hudson Shipping Co. v. United States, 43 CCPA at 20, 26 (1955) (monopoly pricing or discrimination would prevent product from being freely offered); and Jno. G. McGiffin v. United States, 38 Cust.Ct. 609 (1957) (price list restricted to jobbers was evidence that plaintiffs proposed prototype was not freely offered). It is on the basis of restricted sales that plaintiff grounds its last challenge. Plaintiff contends that Bata would not sell its product to either discount stores or mail order houses. In support of its argument plaintiff cites the testimony of Mr. Earls, sales manager of Bata’s eastern region in-stock division, who was sales manager in the make-up division from 1977 to 1978. This testimony creates the impression that Bata would not have sold to discounters, in order to maintain the reputation of its product. On the other hand, there is clear testimony that no offers to buy at the list price were rejected, except for credit reasons. There is also testimony that Bata would have sold the prototype to a large discounter. Overall the testimony at trial, however, indicates that discounters simply did not seek to buy the prototype shoe at list price, and there was no evidence that the lack of attempts to purchase by discounters was the result of actions or statements by Bata employees. Where a group of potential buyers has eliminated itself from the available market, it is irrelevant whether or not the prototype seller hypothetically might be reluctant to sell to such customers.

Plaintiff also cites the Bata questionnaire to support the proposition that Bata refused to sell to mail order houses. Bata’s response simply indicates that no sales were made. It does not state that any sales were requested and refused. In sum, plaintiff has failed to prove, by a preponderance of the evidence, that the prototype was not available at the list price to whomever wished to purchase it.

Since the court has found that the prototype Junior Jogger was similar to the subject Flyer and that the prototype was freely offered for sale at list price, plaintiffs alternative methods of valuation need not be examined. Accordingly, the appraisal is found to be correct, and judgment is rendered for defendant.

      . The former 19 U.S.C. § 1402(g) defined ASP. by providing that:
      The American selling price of any article manufactured or produced in the United States shall be the price, including the cost of all containers and coverings of whatever nature and all other costs, charges, and expenses incident to placing the merchandise in condition packed ready for delivery, at which such article is freely offered for sale for domestic consumption to all purchasers in the principal market of the United States, in the ordinary course of trade and in the usual wholesale quantities in such market, or the price that the manufacturer, producer, or owner would have received or was willing to receive for such article when sold for domestic consumption in the ordinary course of trade and in the usual wholesale quantities, at the time of exportation of the imported article.

      . Since the subject products were exported before repeal of the ASP statute, ASP is potentially applicable.

      . In its post-trial brief, plaintiff dropped its claim for an alternative ASP based on a different prototype.

      . "Under ASP procedures, domestic manufacturers [could] submit to Customs copies of catalogs and price lists for shoes which they wish[ed] to be considered by Customs in making ASP determirations. These manufacturers [were required to] 'certify' that the footwear described in the submitted material [was] freely-offered for sale for domestic consumption at the prices cited." Nike, Inc. v. Rubber Manufacturers Assoc., 509 F.Supp. 912, 915 (S.D.N.Y.1981) (dismissing .some antitrust claims and staying consideration of others pending outcome of related case in CIT).

      . Mr. Kursewicz relied on his knowledge of the company based on substantial experience.

      . Under 19 U.S.C. § 1401a(e) the Aceto court was required to look at a "freely sold” standard. The Aceto court relied on language in United States v. Mexican Products Co., 28 CCPA 80 (1940) cited by plaintiff. In the Mexican Products case which dealt with a statute which used the term "freely offered” rather than "freely sold", the court found that despite a majority of sales at other than list price, only list price constituted the price at which goods were freely offered to all purchasers in the usual wholesale quantities and in the ordinary course of trade. 28 CCPA at 90.

      . A make-up division shoe was not introduced at trial but testimony indicated there were some material and cosmetic differences between the make-up shoe and the in-stock shoe.

      . The relevant testimony which appears at Volume III of the Transcript at 63-64 reads as follows:
      Q During the period 1977, 1978, did you sell to any discounters?
      A Yes.
      Q Big discounters, like Meldisco, in the in-stock division?
      A No.
      Q Do you recall that you and I met before you took your deposition testimony?
      A Yes.
      Q And, I think it was the day after that very bad airplane crash in Washington a few years ago?
      A Possibly.
      Q And was Mr. Weidan [szc ] present at that time?
      A Yes.
      Q And I told you who I was representing and I was with Mr. Weidan and I asked you some questions regarding this matter?
      A Yes.
      Q And do you recall I asked you whether or not you have any policy with respect to selling to the big discounters like Meldisco, from the in-stock division?
      A To some extent, yes.
      Q Do you recall telling me, in the presence of Mr. Weidan, that in fact, no company, such as Bata, would be willing to sell to discounters, because it could do very serious damage to it, by diluting your brand name. Do you recall making that statement in my presence?
      A Yes, Mr. Melahn. However, these specific questions you are talking about was part of a 10—maybe 15 minute conversation concerning that one topic. Therefore, many statements could have been made.
      Q Do you recall my making that statement and your giving me that answer? Do you recall telling me that during that conversation—that you, Bata, would not sell' to a discounter such as Meldisco, from your in-stock division, because it would seriously dilute your brand name?
      A I don’t recall making that statement, but it’s very possible I could have made that statement.


author: NEWMAN, Senior Judge:

text:
    BRITISH STEEL CORPORATION, et al., Plaintiffs, v. UNITED STATES, et al., Defendants, Allegheny Ludlum Steel Corporation, et al., Defendants-Intervenors.
    Court No. 83-7-01032.
    United States Court of International Trade.
    March 8, 1985.
    See also 573 F.Supp. 1145, 578 F.Supp. 421.

      Steptoe & Johnson Chartered, Washington, D.C. (Richard O. Cunningham, Charlene Barshefsky, Alice L. Mattice, and William Martin, Washington, D.C., of counsel), for plaintiffs.
    Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, and Sheila N. Ziff, Washington, D.C., for defendants.
    Collier, Shannon, Rill & Scott, Washington, D.C. (David A. Hartquist, Paul C. Rosenthal and Jeffrey S. Beckington, Washington, D.C., of counsel), for defendants-intervenors.
    Stewart & Stewart (Eugene L. Stewart, Washington, D.C., of counsel), for amicus curiae Bethlehem Steel Corp.
   NEWMAN, Senior Judge:

Introduction

The novel issue raised, with far-ranging implications in international trade, is whether under the facts and circumstances presented here certain benefits provided by the United Kingdom (U.K.) government used to “restructure” British Steel Corporation’s (BSC) steel-making facilities are subsidies subject to countervailing duties.

Pursuant to section 516A of the Tariff Act of 1930 (19 U.S.C. § 1516a) BSC, the only U.K. producer and/or exporter to the United States of stainless steel sheet and plate, and British Steel Corporation, Inc., the exporter’s American affiliate, challenge the final affirmative countervailing duty determinations of the United States Department of Commerce, International Trade Administration (ITA), concerning stainless steel plate (48 Fed.Reg. 19048, April 27, 1983). Jurisdiction is conferred upon this Court by 28 U.S.C. § 1581(c). Briefly, plaintiffs contend that ITA acted arbitrarily and contrary to law in determining that certain U.K. government benefits provided to BSC from April 1977 through March 1982 were countervailable subsidies and in calculating the value of the subsidies.

Before the Court are: (1) plaintiffs’ motion for review of ITA’s determinations upon the agency record in conformance with Court of International Trade Rule 56.-1; (2) defendants’ cross-motion for review and for partial remand; and (3) defendants-intervenors’ (intervenors) cross-motion for review.

Administrative Background

On October 7, 1982 ITA received a petition from Allegheny Ludlum Steel Corporation, other American specialty steel manufacturers and United Steelworkers of America, filed pursuant to 19 U.S.C. § 1671 on behalf of domestic manufacturers of stainless steel sheet, strip and plate, alleging that certain benefits constituting subsidies within the meaning of section 1671 are being provided, directly or indirectly, to the manufacturers, producers or exporters in the U.K. of these stainless steel products. The petition also included allegations of injury caused by the imports.

On November 2, 1982 ITA initiated a countervailing duty investigation into the subsidy allegations contained in the petition (47 Fed.Reg. 49692). In due course, ITA notified the International Trade Commission (ITC) of its initiation of the investigations and on November 22, 1982 ITC made a preliminary affirmative injury determination respecting the involved stainless steel plate (47 Fed.Reg. 54180).

ITA issued its preliminary affirmative countervailing duty determinations on February 10, 1983, finding that the U.K. government was providing British manufacturers, producers or exporters of stainless steel sheet, strip and plate with benefits constituting subsidies (48 Fed.Reg. 6146). The programs preliminarily found to confer subsidies were: public dividend capital and new capital; National Loans Fund (NLF) loans and loan conversions; Regional development grants; and Iron and Steel Industry Training Board grants.

In its determinations, ITA applied the general principles and conclusions of law described in Appendices 2-4 of the “Final Affirmative Countervailing Duty Determinations on Certain Steel Products from Belgium” (47 Fed.Reg. 39304, 39316, September 27, 1982). Appendix 2 explained ITA’s methodology for dealing with certain types of capital and financial subsidies, including grants, loans, loan guarantees and equity. ITA has since modified various aspects of its methodology in the “Subsidies Appendix”, attached to its notice of “Cold-Rolled Carbon Steel Flat-Rolled Products from Argentina: Final Affirmative Countervailing Duty Determination and Countervailing Duty Order” (49 Fed.Reg. 18006 (April 26, 1984)).

ITA published its “Final Affirmative Countervailing Duty Determinations on Stainless Steel Sheet, Strip, and Plate from the United Kingdom” on April 27, 1983. 48 Fed.Reg. 19048 (1983). The programs determined to confer subsidies were those mentioned in ITA’s preliminary affirmative determination. ITA found that BSC was receiving subsidies at an ad valorem rate of 19.31 percent.

On June 10, 1983 ITC issued a final affirmative injury determination with respect to imports of stainless steel plate and made negative determinations respecting stainless steel sheet and strip (48 Fed.Reg. 27454 (1983)). Accordingly, on June 23, 1983 ITA issued a countervailing duty order only as to U.K. stainless steel plate (48 Fed.Reg. 28690). Subsequently, on July 21, 1983 plaintiffs instituted this action.

Financial History of BSC

BSC was established on March 22, 1967 under the provisions of the Iron and Steel Act of 1967 by combining 14 steel firms into one nationalized company. The British government reimbursed stockholders of record and absorbed substantial debts of the individual companies. The bulk of the debt was converted to government equity under the provisions of the Iron and Steel Act of 1969, which also authorized government payments to BSC. Authority for the government to make payments to BSC was renewed by the Iron and Steel Act of 1975 (48 Fed.Reg. 19049). In nine of the 15 years of its existence, including every year since fiscal year 1974/75, BSC has received government payments, described by BSC prior to 1978/79 as Public Dividend Capital (PDC) and since 1978/79 as New Capital (NC). In 1972 and 1981, the British Parliament directed that portions of its capital investment in BSC be credited to accumulated revenue deficit.

In those same years, government loans from the NLF, established by the National Loan Fund Act of 1968, were also converted into equity. (Lending from the NLF is limited to nationalized companies and such loans must be authorized by an act of the British Parliament.) The Iron and Steel Act of 1967 authorized BSC to borrow from NLF’s predecessor fund (the Consolidated Fund), and the Iron and Steel Act of 1975 authorized borrowings directly from the NLF. In 1971/72, all outstanding loans from the NLF to BSC were converted into equity, as were all NLF loan amounts outstanding as of the end of the 1980/81 fiscal year.

The direct government payments to BSC and the loan conversions (which also constitute equity investments) were essential, along with other programs, to the survival of BSC, which made a profit of 89 million pounds before taxes in the fiscal year 1974/75 (ending March 29, 1975) and has been losing money ever since.

Issues Presented

Plaintiffs raise eight distinct issues: Points I, II and III of plaintiffs’ memorandum address the interpretation and application of certain statutory concepts to benefits conferred by the British government upon BSC during fiscal years 1977/78 through 1981/82 that were found by ITA to constitute countervailable subsidies under 19 U.S.C. §§ 1671 and 1677. Points IV through VII of plaintiffs’ memorandum challenge the valuation methodologies utilized by ITA in its investigation, which methodologies have since been revised and clarified. Defendants urge that since the valuation methodologies challenged by plaintiffs are not currently being utilized, this action should be remanded to ITA for redetermination respecting valuation of the subsidies in accordance with current methodologies. In Point VIII of its memorandum plaintiffs challenge ITA’s determination that BSC was not creditworthy in fiscal year 1977/78 (the last year prior to restructuring) and consequently contest the finding that U.K. government equity infusions were provided on terms inconsistent with commercial considerations.

For the reasons indicated below, ITA’s determinations are affirmed in part and this action is remanded to ITA for further proceedings respecting Points IV through VIII of plaintiffs’ memorandum. Accordingly, the Court will not presently address the issues raised by plaintiffs in points IV through VIII.

Opinion

I.

The Statutory “Commercial Considerations” Standard

Section 771(5) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1677(5), includes any subsidy “bestowed directly or indirectly on the manufacture, production, or export of any class or kind of merchandise” including: “[t]he provision of capital, loans, or loan guarantees on terms inconsistent with commercial considerations”. 19 U.S.C. § 1677(5)(B)(i) (emphasis added). There is no dispute that BSC received loans and capital from the British government during its restructuring period, fiscal year 1978/79 to the present. The restructuring funds comprised the general equity funding provided by the U.K. government from the beginning of fiscal year 1978/79 to the present used by BSC for general corporate purposes (working capital, coverage of operating loss, etc.) to enable the company to restructure; the forgiveness of indebtedness to the NLP is also included. Plaintiffs contend that ITA erred in determining that these funds were provided to BSC during the restructuring period on “terms inconsistent with commercial considerations” within the purview of the statute.

This Court agrees with ITA’s finding that BSC received government funding “on terms inconsistent with commercial considerations.”

In addition to the financial background of BSC presented above, the following facts are pertinent:

The annual reports and accounts of BSC for fiscal years 1974/75 through 1981/82 paint a bleak picture of a company burdened, in the face of a severe economic recession, with, among other things, redundant/ obsolescent plants and equipment, a redundant work force, and poor industrial relations. In 1978, BSC initiated a program of radical restructuring calling for a drastic reduction in productive capacity through closing of redundant plants and other facilities, retiring obsolescent equipment, reducing the work force, improving industrial relations, eliminating unprofitable production, streamlining and upgrading of the plants to be retained, introducing technological innovations, and cutting costs where possible in the hope of attaining a competitive position in domestic and foreign markets.

Nonetheless, even by the end of fiscal year 1981/82, BSC was still not out of the financial “woods”, as evidenced by its “Annual Report and Accounts 1981-82”. By the end of the 1981/82 fiscal year (April 3, 1982), BSC had incurred a huge loss of 358 million pounds after interest and taxation, and before extraordinary items. Moreover, the auditors included the following cautionary note (A.R. 616):

The accounts have been drawn upon the going concern basis which assumes that adequate finance will be forthcoming to meet operational needs. The validity of this assumption is uncertain because, as explained in general note I, the external financing limit set by the Government for the financial year ending March 1983, which included an allowance for normal contingencies:
(a) is subject to approval by the European Commission; and
(b) may prove inadequate if the stability assumed in the projections on which it is based does not obtain.
As explained in general note IV, there are continuing uncertainties in the steel market and there is a consequential uncertainty as to the level of future trading results. Accordingly, we have not been able to satisfy ourselves that the amount of 1,579 million at which fixed assets are stated in the consolidated balance sheets (the Corporation’s bal ance sheet £ 1,)51 million) will be recoverable out of future earnings. [Emphasis supplied.]

Against this dismal financial background, ITA considered whether the U.K. government’s equity investments, or “infusions”, constituted subsidies within the meaning of the countervailing duty law. The term “subsidy” is defined in 19 U.S.C. § 1677(5):

(5) Subsidy. The term “subsidy” has the same meaning as the term “bounty or grant” as that term is used in section 1303 of this title, and includes, but is not limited to, the following:
(A) Any export subsidy described in Annex A to the Agreement (relating to illustrative list of export subsidies).
(B) The following domestic subsidies, if provided or required by government action to a specific enterprise or industry, or group of enterprises or industries, whether publicly or privately owned, and whether paid or bestowed directly or indirectly on the manufacture, production, or export of any class or kind of merchandise:
(i) The provision of capital, loans, or loan guarantees on terms inconsistent with commercial considerations.
(ii) The provision of goods or services at preferential rates.
(iii) The grant of funds or forgiveness of debt to cover operating losses sustained by a specific industry.
(iv) The assumption of any costs or expenses of manufacture, production or distribution.

Thus, in accordance with 19 U.S.C. § 1677(5)(B)(i), ITA had to determine whether funding was provided to BSC “on terms inconsistent with commercial considerations”. In this connection ITA stated in its notice of final affirmative countervailing duty determinations (48 Fed.Reg. at 19049):

Our treatment of government equity investment in a company hinges essentially on the soundness of the investment. If the government investment was reasonably sound at the time it was made, we do not consider it a subsidy. If, on the contrary, the investment appears to have been unsound, a subsidy may exist. Government investment confers a subsidy only when it is on terms inconsistent with commercial considerations.
An equity subsidy potentially arises when the government makes equity infusions into a company which is sustaining deep or significant continuing losses and for which there does not appear to be any reasonable indication of a rapid recovery.
For the purpose of determining whether BSC represented a sound investment at the time each equity investment was made by the U.K. government, we primarily considered BSC’s cash flow from operations, including interest, but excluding government grants. Our analysis also included BSC’s operating results and computations of BSC’s current ratio (current assets divided by current liabilities). On the basis of these tests, we considered investment in BSC to be inconsistent with commercial considerations from fiscal year 1977/78 through 1981/82.
Since we have determined that BSC was not a sound investment from April 1977 through March 1982, we examined the government’s equity infusions during this period to determine whether they bestowed a subsidy. To the extent in any year that the government realized a rate of return on its equity investment in BSC which was less than the average rate of return on equity investment for the country as a whole (thus including returns on both successful and unsuccessful investments), its equity infusion is considered to confer a subsidy.

With respect to the forgiveness of loans from the NLF, the notice states (48 Fed. Reg. at 19050):

Since the first forgiveness [1971/72] occurred during the period in which we consider equity infusions to be consistent with commercial considerations, it did not confer a subsidy. The second forgiveness [1981/82] was made during the period in which we consider equity infusions to have been inconsistent with commercial considerations, and potentially conferred a subsidy. We examined the rate of return on the second equity infusion and compared it to the national average rate of return on equity. Since the UK government realized a rate of return on equity investment in BSC which was less than the average rate of return on equity investment for the country as a whole (thus including returns on both successful and unsuccessful investments), we determined that a subsidy was in fact conferred.

In response to BSC’s contention that ITA should not countervail against funding for restructuring because restructuring eliminates excess capacity, alleviating a form of trade distortion—consistent with the goals of our countervailing duty law and the GATT Subsidies Code—ITA stated (48 Fed. Reg. at 19053):

We disagree with BSC’s interpretation of the countervailing duty law and the Code. Our statutory obligations are carefully defined and mandatory in nature. Whenever it is determined that subsidized imports are injuring the domestic industry that manufactures or produces a like product, we are required by domestic law, and authorized by the Code, to impose appropriate countervailing duties, provided, of course, that all relevant procedural requirements are satisfied.
As discussed in the preceding comment, we have determined that certain Public Dividend Capital is an equity investment provided on terms inconsistent with commercial considerations, and is therefore countervailable, regardless of whether some of the funds received from these capital infusions were used for restructuring or to purchase assets now idle as a result of restructuring. Therefore, we must countervail against these benefits.
Although Article 11 of Part II of the Code does provide, among other things, that a signatory’s right to provide domestic subsidies for purposes of restructuring are not precluded by the Code, it does not exempt such subsidies from countervailing duties. Therefore, regardless of whether restructuring subsidies serve to alleviate other trade distortions, countervailing against such benefits is wholly consistent with the Code and our statute.

Plaintiffs also argue here that since the Trade Agreements Act of 1979 was intended to remedy trade distortions and funds expended for restructuring are intended to reduce or eliminate trade distortions, ITA misapplied the “commercial considerations” standard prescribed by the statute. However, plaintiffs’ “trade distortion” theory is plainly without merit. See ASG Industries, Inc. v. United States, 67 CCPA 11, C.A.D. 1237, 610 F.2d 770 (1979); ASG Industries, Inc. v. United States, 82 Cust.Ct. 101, C.D. 4797, 467 F.Supp. 1200 (1979).

Further, pertaining to the question of whether government funds are provided to a company under conditions inconsistent with commercial considerations, the Subcommittee on Trade of the House Committee on Ways and Means observed in its Summary of Recommendations for Legislation Implementing the Multilateral Trade Negotiations, 96th Cong., 1st Sess. 4 (Comm. Print 21 (1979)):

With regard to the provision of capital, ‘commercial considerations’ shall mean consideration of whether at the time the capital is provided, the recipient is required, and can be expected within a reasonable period of time, to derive from its operations a reasonable rate of return on its invested capital.

ITA found that the U.K. government received a rate of return on its BSC investment lower than the average return on equity investment for the country as a whole (including returns on both successful and unsuccessful investments). Clearly, given BSC’s deteriorating financial condition and precarious situation, no private sector investor expecting a reasonable return on his investment within a reasonable time would have given any consideration whatever to investing in BSC during the period of its restructuring. As aptly stated in defendants’ memorandum at 22:

The imperatives which committed the British government to saving BSC were not based upon the normal and usual commercial considerations of the market place. They were based upon a need to shore up a failing steel industry which would “recapture its home market share from imports and establish inroads to the export market” (A.R. 55), and thus strengthen an economy weakened by a worldwide recession, low productivity, obsolescent industries, and poor industrial relations, not to mention such other factors as national pride and the government’s commitment to maintain its steel industry.

The Court also strongly disagrees with plaintiffs’ contention that in determining whether government funds were provided on terms inconsistent with commercial considerations, the “rationality” of the restructuring must be considered. While government investment in its state-owned enterprises may indeed be rational in terms of national policy, such investment may not be consistent with commercial considerations, depending upon the soundness and terms of the investment. However, neither the reasonableness of the action taken by the government, nor the results ultimately achieved (viewed in retrospect), are pertinent to the “commercial considerations” test.

II.

Redundancy and Closure Funds

Plaintiffs claim that even assuming arguendo that U.K. government funds were provided on terms inconsistent with commercial considerations, ITA erred in determining that funds provided specifically for closure of inefficient plants and discharge of “redundant" work force (redundancy and closure funds) are countervailable since such funds do not benefit, either directly or indirectly, “manufacture, production or export”. See 19 U.S.C. §§ 1671(a)(1) and 1677(5)(B). In plaintiffs’ view, funds provided to shut down excess capacity and eliminate unnecessary jobs are for purposes that are the very antithesis of “manufacture, production or export”, and thus are not countervailable under any circumstances.

However, the Court is in complete agreement with ITA’s disposition of this issue (48 Fed.Reg. 19048, 19052-53):

Moreover, subsidies used to close redundant facilities or to purchase idled assets clearly constitute countervailable benefits under the statutory definition of “subsidy.” ... Clearly, redundancy funds and plant closures make the recipient more efficient and relieve it of significant financial burdens. Thus, such funds are unquestionably indirect, if not direct, benefits to BSC’s manufacture, production or export of steel and consequently are countervailable. [Emphasis added.]

The apparent purpose of “restructuring,” viz., closing obsolete facilities, eliminating excess capacity and laying off unnecessary workers, is to reduce costs and enhance the competitiveness of the remaining enterprise. As a company becomes more cost efficient and thereby more price competitive, there is a direct benefit to the manufacture, production or export of all the firm’s products. Thus, the use of government funds to finance improved efficiencies and competitive posture obviously provides direct benefits to BSC’s manufacture, production or export. Whatever laudable objectives motivated the provision of funds for restructuring, the effect of the U.K. government’s action was not only to assure the survival of a company that otherwise would be bankrupt, but to make the company more competitive .in the marketplace. Significantly, the countervailing duty law concerns itself not with the government’s purpose or intent in a particular program, but whether the government’s funds give the country’s exports an unfair competitive advantage. Downs v. United States, 187 U.S. 496, 23 S.Ct. 222, 47 L.Ed. 275 (1903) and Nicholas & Co. v. United States, 249 U.S. 34, 39 S.Ct. 218, 63 L.Ed. 461 (1919).

In the Downs and Nicholas teachings, the Supreme Court interpreted the statutory phrase “bounty or grant” when the countervailing duty law covered only exportation of merchandise. In 1922, the law was broadened to impose countervailing duties on any bounty or grant paid or bestowed, directly or indirectly, upon manufacture or production (as well as export) of merchandise. Tariff Act of 1922, ch. 356, § 303, 42 Stat. 858, 935. Consequently, even broader activities were and are covered by the countervailing duty law so long as they are benefitted by government funds and have resulted in a competitive advantage to the recipient.

More recently, in Zenith Radio Corporation v. United States, 437 U.S. 443, 98 S.Ct. 2441, 57 L.Ed.2d 337-(1978), the Supreme Court considered the question of what constitutes a bounty or grant under the countervailing duty law, and specifically relative to unfair competitive advantage observed (437 U.S. at 437 at 455-56, 98 S.Ct. at 2447-48):

* * * This purpose is relatively clear from the .face of the statute and is confirmed by the congressional debates: the countervailing duty was intended to offset the unfair competitive advantage that foreign producers would otherwise enjoy from export subsidies paid by their governments. See, e.g., 30 Cong.Rec. at 1674 (remarks of Sen. Allison), 2205 (Sen. Caffery), 2225 (Sen. Lindsay) * * *

And in ASG Industries, Inc., supra, 82 Cust.Ct. at 114, 467 F.Supp. at 1230, the Court observed that “[t]he purpose of the [countervailing duty] law is to prevent unequal competition in our markets—to prevent foreign goods from competing with domestic goods at a lower price than they would be sold”. The ASG Court emphasized that the nature of the exporter’s cost reduction is immaterial (82 Cust.Ct. at 114, 467 F.Supp. at 1230):

Against the plain language of the statute and the comprehensive judicial discussions of the predecessor provisions involving export bounties, we turn to the Italian programs in question. Unquestionably, the “effect” of these programs has been to reduce SIY’s cost of producing float glass. And whether the reduction in cost is occasioned by direct cash payments, or by an act of government reducing labor cost, capital cost, or the cost of any other factor of production is of no consequence. For if a benefit or advantage is received in connection with the production of merchandise, that benefit or advantage is a bounty or grant on production. And to the extent that such bountied merchandise is exported to the United States, it comes squarely within our countervailing duty law—section 303. See also: S.Rep. No. 249, 96th Cong. 1st Sess. 37 (1979).

In sum, the British government’s domestic purposes in providing funds to BSC for “restructuring” are not controlling of the question of whether such largess constitutes countervailable subsidies. Rather, as noted supra, the concept of a countervailable subsidy in the context of the present case focuses upon the unfair competitive advantage granted by the British government’s provision of funds to reduce BSC’s production costs. By providing massive funding to help BSC eliminate obsolete facilities and unneeded labor, the British government reduced BSC’s cost of producing steel and gave BSC precisely the kind of unfair competitive advantage that Congress sought to equalize through the application of countervailing duties.

Further, the Court agrees with defendants’ contention that since the equity investments in BSC benefitted all of its remaining manufacturing and exporting operations, it is unnecessary to trace the use of such funds or to find that they directly related to enhanced product competitiveness. “General financial benefit to the production is sufficient to support a determination of subsidy and a quantification of exact competitive benefit to the products need not enter into the allocation of the benefit.” Michelin Tire Corporation v. United States, 4 CIT 252, 255 (1982). The Court also agrees with intervenors’ argument that funding to cover closure and redundancy costs are countervailable on the basis of the amount of funding BSC received, and that the extent to which BSC improved its efficiency by the use of the funds (which would be extremely difficult to quantify) is irrelevant. Hence, plaintiffs’ argument that funds to cover redundancy and closure costs are not countervailable because efficiency gains are too remote and nonquantifiable is without merit.

Finally, plaintiffs attack what they claim to be ITA's assumption that funds received by BSC are “fungible”, viz., “government funds invested in a firm enter one large pool that may be used for any purpose that the firm desires”. (Plaintiffs’ memorandum, at 44). Plaintiffs insist that viewing money as fungible violates the countervailing duty law’s requirement of “precisely calculated duties on particular products” (Id.). The Court agrees with intervenors’ argument that although the funds received by BSC were untied to specific assets and treated by BSC as fungible, such funding is countervailable on a pro rata basis to the production of a particular product like stainless steel plate. If prorating were not allowed, a program could readily escape countervailing duties simply by the government’s direction that its grants be used for “general” purposes. The short of the matter is ITA properly allocated a share of the funds provided to BSC for redundancy and closure costs to the products benefitted, including a proration to stainless steel plate.

III.

Funds for Purchase of Capital Assets Prematurely Taken Out of Use in the Course of Capacity Reduction

Further predicated upon the statutory language “manufacture, production, or export” in 19 U.S.C. § 1677(5)(B), plaintiffs contend that ITA is prohibited from imposing countervailing duties over a period of years upon subsidized funding used by BSC to acquire capital assets prematurely taken out of use in the course of capacity reductions incident to restructuring. In plaintiffs’ view, even assuming ITA correctly found that assets were initially acquired with funds provided on terms “inconsistent with commercial considerations”, all benefits to “manufacture, production, or export” abruptly cease when an asset is taken out of use, and from that point on there is no subsidy to countervail. Thus, according to plaintiffs, ITA erred in imposing countervailing duties over the full fifteen year anticipated useful life of assets prematurely retired, since the assets actual useful life, and therefore the actual commercial and competitive benefit of the subsidy, was curtailed. In short, plaintiffs’ position is that a capital asset confers no further benefit to “manufacture, production, or export” after it is taken out of use, and consequently ITA must recognize in full (“expense”) the undepreciated cost of the asset in the year it is taken out of use in conformance with generally accepted accounting principles.

The Court cannot agree with plaintiffs’ hypothesis that the funds used to acquire assets prematurely retired confer no benefit after the asset is taken out of use. Fundamentally, the value of a subsidy must be measured in accordance with its benefit to the recipient, which is not necessarily limited to the period of time assets are actually used. Plaintiffs’ argument confuses the benefit conferred by the use of the asset with the benefit conferred by the use of the subsidy to acquire the asset. Plainly, after an asset is taken out of service, the asset itself does not continue to provide a benefit to the firm. Nevertheless, the Court agrees with defendants’ and intervenors’ position that the competitive benefit of funds used to acquire assets does not cease upon the asset’s premature retirement, but rather such benefit continues to contribute to the firm’s manufacture, production, or exportation of products accomplished by the firm’s remaining assets. Subsidies for the purchase of capital assets bestow a benefit to the recipient firm by relieving it not only of the immediate costs normally incurred in acquiring such assets (thereby freeing up other funds for other uses), but also by relieving the firm of the continuing annual costs of acquiring an asset. As the Court observed in Michelin Tire Corporation v. United States, 6 CIT —, Slip Op. 83-136 (December 22, 1983), regarding to the benefits which result as a direct consequence of a subsidy:

The benefits which must be withdrawn by payment of duty in the case of a subsidy are the benefits which result as a direct consequence of the subsidy. For a business, the direct consequences of receiving a gift of money normally are the elimination of the necessity of looking elsewhere for those funds and paying the price required by the alternative source of funds. The normal alternative sources of funding for business enterprises are two—the sale of shares in the business, carrying with it the obligation to share the profits, or the incurring of debt, carrying with it the obligation to repay the creditor with interest.

While plaintiffs urge that for the years after the assets were taken out of use, “it is just as if British Steel had given the assets back to the government”, plaintiffs overlook the fact that neither the assets nor the funds received by BSC were returned in any form to the government.

Plaintiffs also insist that after an asset is retired there is no continuing obligation to repay a loan used to acquire the asset since under standard commercial practice, a repayment obligation is accelerated and the remaining balance becomes due and payable at the time of the asset’s retirement. However, acceleration clauses applicable to loan defaults, relied upon by plaintiff to prove their point, are entirely inapposite to premature retirement of assets. In brief, after retirement of its assets, BSC did not repay the funds to the government and had no obligation of repayment, and accordingly BSC continued to benefit from the subsidy.

For the foregoing reasons, the Court concludes there is no merit in plaintiffs’ contention that funds used to acquire capital assets cannot be countervailed after the assets have been prematurely taken out of use.

IV.

Remand of Action Respecting Points IV through VIII of Plaintiffs’ Memorandum

Plaintiffs contend that they are entitled to judicial review of ITA’s determinations on the basis of the existing record, including the valuation methodologies heretofore employed by ITA. However, for the reasons indicated below, the Court concludes that the granting of defendants’ request for remand of the action respecting points IV through VIII of plaintiffs’ memorandum is warranted.

As previously noted, in its determinations on stainless steel sheet, strip and plate from the United Kingdom, ITA applied the general principles and conclusions of law described in Appendix 2, supra. In Appendix 2, ITA explained its methodology for valuing certain types of subsidies that arose in a number of countervailing duty proceedings. However, since publishing Appendix 2, ITA has adopted a number of significant changes in its valuation methodologies, which were incorporated into the “Subsidies Appendix”, supra.

Points IV through VII of plaintiffs’ memorandum involve challenges to Appendix 2 Methodologies that have since been super-ceded in the Subsidies Appendix, and for that reason defendants request that this action be remanded respecting Points IV through VIII of plaintiffs’ memorandum for revaluation and recalculation of the subsidies. Defendants advised the Court that the revised methodology was utilized in the first annual administrative review (19 U.S.C. § 1675). As aptly pointed out by defendants, although plaintiffs are making estimated countervailing duty deposits at the rate specified in the final affirmative determination, the actual net subsidy will be calculated upon the rate determined by the current annual review. Consequently, any decision concerning the correctness of the methodologies heretofore used in valuation of the subsidies would have little, if any, application (except on the deposit rate) since it would concern methodologies no longer employed by ITA. Hence, the Court must agree with defendants that judicial resources would be best utilized by remanding this action and considering the viable issues involving the valuation methodologies currently employed by ITA, rather than resolve them in a later suit challenging the final results of the first annual review.

Additionally, this action is remanded respecting another aspect involving Point VIII of plaintiffs’ memorandum. Defendants advised the Court that the information utilized by ITA to support its determination, obtained from the administrative record in the Final Affirmative Countervailing Duty Determinations concerning certain carbon steel products from the United Kingdom (47 Fed.Reg. 39384, September 7, 1982), was omitted from the record in this action. That information constitutes part of the administrative record for review in connection with the issues raised by Point VIII in plaintiffs' memorandum—viz., creditworthiness of BSC during fiscal year 1977/78. Therefore, pursuant to 19 U.S.C. § 1516a(b)(2), this information must be added to the record. As mentioned, supra, the action is remanded respecting Point VIII also for the reason that the methodology employed by ITA in calculating subsidies as a result of equity infusions has been revised by the Subsidies Appendix.

In the interest of judicial economy, then, defendants’ request for remand of this action respecting Points IV through VIII of plaintiffs’ memorandum is granted.

Conclusion

For the foregoing reasons, it is hereby ORDERED that:

1. ITA’s affirmative countervailing duty determinations respecting stainless steel plate from the United Kingdom is sustained as to all matters addressed by Points I, II and III of plaintiffs’ memorandum. Accordingly, the Court affirms ITA’s determinations that the U.K. government’s equity investments in BSC (consisting of payments of public dividend capital or new capital and the forgiveness Of all outstanding loans from the NLF) constitute subsidies within the meaning of 19 U.S.C. § 1671;

2. To the extent not disposed of by this opinion, the matters addressed by Points IV through VIII in plaintiffs’ memorandum are remanded to ITA for: (a) revaluation and recalculation of the subsidies in accordance with the “Subsidies Appendix”, including valuation of redundancy and closure funds, funds associated with assets taken out of use, gains from extinguishment of indebtedness, “time value” of money, equity infusions during fiscal year 1977/78, and such other revaluations and recalculations as are necessary; and (b) to add to the record all information obtained and/or utilized by ITA in making its determination relative to Point VIII of plaintiffs’ memorandum concerning the creditworthiness of BSC in fiscal year 1977/78.

3. ITA shall provide notice to interested parties of its proposed redeterminations and afford them reasonable opportunity for comment prior to submission of the actual redeterminations to the Court.

4. The Secretary or his delegate shall report his findings and redeterminations to this Court, and supplement the administrative record as provided above, within 120 days after the date of entry of this order.

      . ITA previously determined that BSC was receiving subsidies in connection with certain carbon steel products. 47 Fed.Reg. 39384, September 7, 1982.

      . As recently noted by our Court of Appeals:
      The Department of Commerce and the International Trade Commission (ITC) share the responsibilities for a countervailing duty investigation. The ITA (as Commerce’s delegatee) determines whether the manufacturers, producers, or exporters of the imported merchandise receive subsidies from their governments, and the ITC decides whether the subsidized imports are injuring or threatening to injure a domestic industry. (In certain circumstances, not appicable here, no injury determination is required.) See 19 U.S.C. § 1671, et seq. Bethlehem Steel Corporation v. United States, 742 F.2d 1405, 1407 (Fed.Cir.1984), at n. 1.

      . These countervailing duty determinations are also challenged in Allegheny Ludlum Steel Corporation v. United States, Court No. 83-7-01035, which is sub judice.

      . ITC’s final negative injury determinations as to stainless steel sheet and strip ended the administrative proceedings as to those types of steel imports from the U.K. 19 U.S.C. § 1671b(a). Thus, the present action involves only stainless steel plate from the U.K. ITC’s negative injury determinations respecting stainless steel sheet and strip from the U.K. are contested in Allegheny Ludlum Steel Corp. v. United States, Court No. 83-7-01027, which is sub judice.

      . Plaintiffs raise more specific issues respecting two classes of restructuring funds, addressed subsequently in Points II and III: whether “redundancy and closure funds” and funds associated with the purchase of assets prematurely taken out of use in the course of capacity reductions are funds used in the “manufacture, production, or export" of the subject merchandise.

      . The same equity investments were considered in the Final Affirmative Countervailing Duty Determinations concerning certain carbon steel products from the U.K. (47 Fed.Reg. 39384, September 7, 1982). The bases for ITA's determinations in the carbon steel investigations were utilized in the stainless steel sheet, strip and plate proceedings.

      . Opinion vacated in accordance with parties’ submission on agreed statement of facts. Michelin Tire Corporation v. United States, 9 CIT—, Slip Op. 85-11 (January 28, 1985).

      . Opinion vacated in accordance with parties' submission on agreed statement of facts. Michelin Tire Corporation v. United States, 9 CIT —, Slip Op. 85-11 (January 28, 1985).