297 F.Supp.2d 1333 (CIT. 2003), 00-06-00263, J.S. Stone, Inc. v. United States

Docket Nº:00-06-00263.
Citation:297 F.Supp.2d 1333
Party Name:J.S. STONE, INC., Plaintiff, v. The UNITED STATES, Defendant. SLIP OP. 03-147.
Case Date:October 31, 2003
Court:Court of International Trade
 
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Page 1333

297 F.Supp.2d 1333 (CIT. 2003)

J.S. STONE, INC., Plaintiff,

v.

The UNITED STATES, Defendant.

SLIP OP. 03-147.

No. 00-06-00263.

United States Court of International Trade.

Oct. 31, 2003.

Page 1334

[Copyrighted Material Omitted]

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        Steven R. Sosnov, of Sosnov & Associates, Norristown, PA, for Plaintiff.

        James A. Curley, Commercial Litigation Branch, Civil Division, Department of Justice.

         OPINION

        WALLACH, Judge.

        I.

        Preliminary Statement

        This matter is before the court on cross-motions for summary judgment pursuant to USCIT R. 56. Plaintiff, J.S. Stone, Inc. ("Stone"), seeks a refund of antidumping duties for the difference between the cash deposit rate it received and the published rate determined for Sinochem International Chemicals Corp. ("SICC") in Sebacic Acid From the People's Republic of China; Final Results of Antidumping Duty Administrative Review, 63 Fed.Reg. 43,373 (Aug. 13, 1998). Plaintiff originally brought this action claiming jurisdiction under 28 U.S.C. § 1581(a) and (i) (1994), but later conceded that the court lacked jurisdiction under § 1581(a). 1

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        Defendant challenges the jurisdiction of the court. Additionally, Defendant claims that the Department of Commerce ("Commerce") properly issued antidumping duty instructions to United States Customs Service 2 ("Customs"), which assessed antidumping duties on Plaintiff's entries at the cash deposit rate. For the foregoing reasons, the court has jurisdiction pursuant to 28 U.S.C. § 1581(i) and grants Defendant's Cross-Motion for Summary Judgment.

        II.

        Background

        On July 19, 1993, Union Camp Corporation filed a petition with Commerce and the ITC, alleging that sebacic acid was being sold at prices below fair market value to the detriment of the domestic industry. See Initiation of Antidumping Duty Investigation; Sebacic Acid from the People's Republic of China, 58 Fed.Reg. 43,339 (Aug. 16, 1993). After investigation, it was determined that Union Camp's allegations had merit and Commerce published an antidumping duty order on sebacic acid from the People's Republic of China ("PRC"). Antidumping Duty Order: Sebacic Acid from the People's Republic of China (PRC), 59 Fed.Reg. 35,909 (July 14, 1994).

        Subsequent to the order, Commerce and the ITC conducted administrative reviews for shipments of sebacic acid from the PRC for the periods of July 13, 1994 through June 30, 1995; July 1, 1995 through June 30, 1996; July 1, 1996 through June 30, 1997; and July 1, 1997 through June 30, 1998 ("administrative review periods"). Plaintiff imported sebacic acid from SICC on October 4, 1996, November 4, 1996, and December 9, 1996, and deposited the estimated antidumping duties on the entries with Customs. At the time of importation, the Plaintiff's estimated duty rate was 43.72% ad valorem. On July 21, 1997, Commerce published a notice of opportunity to request administrative review of its antidumping order covering sebacic acid from the PRC for the period of investigation ("POI") from July 1, 1996, through June 30, 1997. 3 Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 62 Fed.Reg. 38,973 (July 21, 1997) ("Notice"). Union Camp filed a petition with Commerce and the United States International Trade Commission ("ITC") requesting an administrative review of SICC. Additionally, SICC requested an administrative review.

        As part of the review, SICC was required to report all of its sales of sebacic

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acid. Plaintiff neither requested an administrative review as an interested party nor participated in the review. 4 SICC did not report its sales to Plaintiff in its questionnaire responses for this administrative review. 5 As a consequence, Commerce did not review SICC's sales of sebacic acid to Plaintiff and SICC's sale prices to Plaintiff were not used by Commerce in computing the .11% dumping rate for SICC.

        On April 9, 1998, Commerce published the Preliminary Results of its administrative review in Sebacic Acid From the People's Republic of China; Preliminary Results of Antidumping Duty Administrative Review, 63 Fed.Reg. 17,367 (Apr. 9, 1998) ("Preliminary Results"). On August 13, 1998, Commerce published its final results which covered four exporters including SICC. Sebacic Acid From the People's Republic of China; Final Results of Antidumping Duty Administrative Review, 63 Fed.Reg. 43,373 (Aug. 13, 1998) ("Final Results").

        On December 17, 1998, Commerce sent liquidation instructions to Customs. Customs was informed that suspension of liquidation was lifted and entries of sebacic acid sold by SICC to the four importers it identified during the review were to be liquidated at the exporter specific antidumping duty rate. Commerce sent another set of liquidation instructions to Customs on April 28, 1999, instructing Customs to liquidate Plaintiff's entries at the cash deposit or bonding rate. Subsequently, on June 9, 1999, SICC sent a letter to Commerce stating that through its "carelessness" it had forgotten to report sales of sebacic acid to J.S. Stone. Plaintiff's Statement in Response to Defendant's Statement of Material Facts at para. 8. Thereafter, on June 18, 1999, Customs liquidated Plaintiff's three entries and assessed anti-dumping duties at the cash deposit rate of 43.72% ad valorem. Commerce then sent a letter to Plaintiff, dated September 2, 1999, explaining why Plaintiff's entries were liquidated at the cash deposit rate. Plaintiff protested the assessment of the antidumping duties under 19 U.S.C. § 1514(a) and its protest was denied.

        III.

        Jurisdiction

         Federal courts determine their own jurisdiction. Williams v. Sec'y of Navy, 787 F.2d 552, 557 (Fed.Cir.1986). A "mere recitation of a basis for jurisdiction, by either a party or a court, cannot be controlling: federal courts are of limited jurisdiction, and may not alter the scope of either their own or another courts' statutory mandate." Id. In this case, the Plaintiff bears the burden of demonstrating that jurisdiction exists because the Defendant challenges the jurisdiction of the court. See Hilsea Inv. v. Brown, 18 C.I.T. 1068, 1070 (CIT 1994). However, it is also incumbent upon the court to independently assess the jurisdictional basis for cases that come before it. See Ad Hoc Comm. v. United States, 25 F.Supp.2d 352, 357 (CIT 1998).

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        A.

        Jurisdiction is Barred Under 28 U.S.C. § 1581(a)

         When an interested party wants Commerce to assess the actual rather than the estimated dumping rate, it may request administrative review of the duties under section 751 of the Trade Agreements Act of 1979 ("1979 Act"). See Mitsubishi Elecs. Am. v. United States, 44 F.3d 973, 976-77 (Fed.Cir.1994). If no request is made, Commerce instructs Customs to assess duties at the estimated rate. However if an administrative review is conducted, Commerce issues its final results and directs Customs to collect the appropriate antidumping duties.

         The 1979 Act transferred the administration of the antidumping laws from the United States Treasury Department to Commerce. Comm. To Preserve Am. Color Television v. United States, 706 F.2d 1574, 1577 (Fed.Cir.1983); Reorg. Plan No. 3 of 1979, § 5(a)(1)(c), 44 Fed.Reg. 69,273, 69,275 (Dec. 3, 1979). Customs' role in liquidating antidumping duties is ministerial. Customs has no authority to modify Commerce's determination and may liquidate entries only at the rate set by Commerce. See Royal Business Machs., Inc. v. United States, 507 F.Supp. 1007, 1 CIT 80, 87 & n. 18 (1980).

        Plaintiff protested the assessment of antidumping duties under § 1514(a), and upon denial of the protest, brought suit under § 1581(a) and (i). Section 1514(a) is limited to "decisions of the Customs Service." Because Customs has no authority to modify Commerce's antidumping determination, only in limited circumstances may a plaintiff challenge Customs' imposition of antidumping duties on its entries. 6

        In this case, Commerce sent liquidation instruction to Customs, which then imposed antidumping duties as directed by Commerce as part of its ministerial functions. The court has no jurisdiction pursuant to § 1581(a) for it was Commerce's instructions, rather than an independent decision by Customs, which determined the antidumping rate.

        B.

        Jurisdiction Does Not Lie Under 28 U.S.C. § 1581(c).

        Defendant claims that Plaintiff functionally challenges the results of the administrative review because it contests the application or inapplicability of the determination's results to its entries, a situation, it claims, where jurisdiction is proper only under § 1581(c). Under § 1581(c), the court has exclusive jurisdiction over any civil action commenced under section 516A of the Tariff Act of 1930. Pursuant to 28 U.S.C. § 2631(c) "[a] civil action contesting a determination listed in 516A of the Tariff act of 1930 may be commenced in the Court of International Trade by any interested party who was a party to the proceeding in

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connection with which the matter arose." Defendant argues that Plaintiff is precluded from challenging the results of the antidumping determination because, although it qualified as an interested party, it did not participate in the administrative proceedings.

        The government's position in this case is similar to the claim it made in Xerox Corp. v. United States, 118 F.Supp.2d 1353, 1354 (CIT 2000) ( "Xerox I" ). In Xerox I, the government claimed that the only method for parties to determine whether their goods were part of antidumping investigation was through a scope determination. This court stated that

the ITA has and has had regulations ... enabling importers like Xerox to file applications to determine whether...

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