American Signature, Inc. v. U.S.

• Decision Date: 14 February 2007
• Docket Number: Court No. 06-00252.,Slip Op. 07-20.
• Citation: 477 F.Supp.2d 1281
• Parties: AMERICAN SIGNATURE, INC., Plaintiff, v. UNITED STATES, Defendant, American Furniture Mfrs. Comm. for Legal Trade, Defendant-Intervenors.
• Court: U.S. Court of International Trade

477 F.Supp.2d 1281

AMERICAN SIGNATURE, INC., Plaintiff, v. UNITED STATES, Defendant American Furniture Mfrs. Comm. for Legal Trade, Defendant-Intervenors.

Slip Op. 07-20.

Court No. 06-00252.

United States Court of International Trade.

February 14, 2007.

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP (Paul G. Figueroa, Bruce M. Mitchell, Mark E. Pardo, William F. Marshall), New York City, for Plaintiff.

Peter D. Keisler, Assistant Attorney General; Jeanne Davidson, Acting Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Michael D. Panzera); Natasha C. Robinson, Attorney, Of Counsel, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, for the Defendant.

King & Spalding, LLP (Joseph W. Dorn, Stephen A. Jones, Jeffrey M. Telep, J Michael Taylor), Washington, DC, for Defendant-Intervenor.

Before: Pogue, Judge.

OPINION AND ORDER

POGUE, Judge.

Plaintiff, American Signature, Inc., ("ASI"), asserting jurisdiction pursuant to 28 U.S.C. § 1581(i) ("section 1581(i)")¹, appeals the prospective application by the Department of Commerce ("Commerce") of amended antidumping duty rates resulting from ministerial error corrections, and specifically Commerce's refusal to instruct the United States Bureau of Customs and Border Protection ("Customs" or "CBP") to refund cash deposit overpayments for entries made between June 24, 2004 and August 4, 2004 and between November 17, 2004 and January 4, 2005. Defendant, the United States, pursuant to USCIT R. 12(b)(1), moves to dismiss this action and dissolve the preliminary injunction, claiming a lack of subject matter jurisdiction. The court finds that Plaintiff has failed to properly utilize jurisdiction available under 28 U.S.C. § 1581(c), and, accordingly, this action must be dismissed.

BACKGROUND

A.

"[T] he United States uses a `retrospective' assessment system under which final liability for antidumping and countervailing duties is determined after merchandise is imported." 19 C.F.R. § 351.212(a);<sup>2</sup> see also Hebei New Donghua Amino Acid Co. v. United States, 29 CIT ___, ___, 374 F.Supp.2d 1333, 1339 (2005). In this regime, during the course of an antidumping duty investigation conducted pursuant to section 732, et seq. of the Tariff Act of 1930, 19 U.S.C. §§ 1673a et seq., Commerce may estimate at various times the rate of antidumping duty that will ultimately be assessed. See Decca Hospitality Furnishings LLC v. United States, 30 CIT ___, ___, 427 F.Supp.2d 1249, 1251 (2006). The first of such estimates follows an affirmative preliminary determination that dumping has occurred. Id.; 19 U.S.C. § 1673b(d). "Pursuant to this initial estimate, Commerce instructs [Customs] to collect estimated duties, sometimes referred to as `cash deposits,' on entries of the merchandise that is subject to investigation." Decca Hospitality, 30 CIT at ___, 427 F.Supp.2d at 1251; 19 U.S.C. § 1673b (d)(1)(3); 19 U.S.C. § 1673e(a)(1); Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 976-77 (Fed. Cir.1994). At the completion of its investigation, Commerce issues a final determination, and antidumping duty order, in which it may (and frequently does) adjust its initial estimate. Decca Hospitality, 30 CIT at ___, 427 F.Supp.2d at 1251. In addition, Commerce's regulations permit correction of "ministerial errors" after a final determination. 19 C.F.R. § 351.224(e). Such corrections may again alter a cash deposit rate.

The process of an "administrative review," is the means by which the actual liability faced by the importers is established. See 19 C.F.R. § 351.213(a) ("Although duty liability may be determined in the context of other types of reviews, the most frequently used procedure for determining final duty liability is the administrative review procedure under section 751(a)(1) of the Act."); see also Mukand Int'l, Ltd. v. United States, Appeal No. 06-1259 at 2-3 (Fed.Cir. Feb. 6, 2007).

Neither statute nor regulation requires an administrative review. Rather, administrative reviews are conducted either when they are requested by an interested party or when the Secretary of Commerce self-initiates such a review. 19 C.F.R. § 351.213.

If an administrative review is conducted, and Commerce determines that the estimated liability, in the form of cash deposits, is less than the actual liability, the importer is required to pay the difference between the actual and estimated liabilities, plus interest. 19 U.S.C. §§ 1673f(b)(1), 1677g. Conversely, if the estimated liability, in the form of cash deposits, is greater than the actual liability, then Customs refunds the difference plus interest to the importers. 19 U.S.C. §§ 1673f(b)(2), 1677(g). This procedure establishes that the liquidation rate is the same as the final duty liability as determined by the administrative review.

In the event an administrative review is not conducted, however, the procedure for establishing the rate at which the goods will be liquidated differs. In such an instance, in accordance with 19 C.F.R. § 351.212(c)(1)(i),³ Commerce instructs Customs to liquidate the entries at the rate equal to the cash deposit required on the merchandise at the time of entry. See Consol. Bearings Co. v. United States, 348 F.3d 997, 1000 (Fed.Cir.2003)("Without a request for administrative review, Commerce liquidates the merchandise at the cash deposit rates (i.e., the deposit rates at the time of entry.)")⁴; Mitsubishi Elecs. Am. v. United States, 44 F.3d at 975 (Commerce automatically assesses antidumping duties if no party requests a review); cf. Consol. Bearings Co. v. United States, 412 F.3d 1266, 1268 (Fed.Cir.2005) (affirming Commerce's practice to treat resellers as it would any company that has not been subject to an administrative review "and [assess] a duty at the rate required on the merchandise at the time of entry.").

B.

This case arises from Commerce's antidumping duty investigation, initiated in December, 2003, of wooden bedroom furniture from the People's Republic of China ("PRC"). See Wooden Bedroom Furniture from the People's Republic of China, 68 Fed.Reg. 70,228 (Dep't Commerce Dec. 17, 2003)(initiation of antidumping duty investigation). Commerce published the preliminary determination from this investigation on June 24, 2004, in which it established a 19.24% cash deposit rate calculated for Rui Feng Woodwork Co., Rui Feng Lumber Development Co., Ltd, and Dorbest, Ltd. (collectively "Dorbest"), unaffiliated Chinese suppliers of ASI, which is, in turn, an importer of Dorbest's products. Wooden Bedroom Furniture from the People's Republic of China, 69 Fed.Reg. 35, 312, 35, 327 (Dep't Commerce June 24, 2004) (notice of preliminary determination of sales at less than fair value and postponement of final determination)("Preliminary Determination").

Based on the preliminary determination, on June 30, 2004, Commerce issued instructions to Customs to collect an estimated duty deposit of 19.24% for all entries of subject merchandise exported by Dorbest and `entered for consumption on or after June 24, 2004. See Message No. 4182201 from Commerce to CBP Re: Preliminary Determination in the AD Duty Investigation of Wooden Bedroom Furniture From China (A-570-890) (June 30, 2004), Amended Public Record, Ex. 8 ("A.P.R.").

After the publication of the preliminary determination, pursuant to 19 C.F.R. § 351.224(c)and(e),⁵ interested parties to the investigation submitted allegations that Commerce's preliminary determination contained ministerial errors.⁶ In response, on August 5, 2004, Commerce published an Amended Preliminary Determination which corrected acknowledged ministerial errors in the original preliminary deposit rates, reducing Dorbest's preliminary margin to 11.85%. See Wooden Bedroom Furniture from the People's Republic of China, 69 Fed.Reg. 47,417, 47,418 (Dep't Commerce Aug. 5, 2004)(notice of amended preliminary antidumping duty determination of sales at less than fair value) ("Amended Preliminary Determination").

Accordingly, on. August 18, 2004, Commerce issued revised instructions directing Customs to collect a cash deposit at the rate of 11.85% for all entries of subject merchandise exported by Dorbest and entered for consumption on or after August 5, 2004. See Message No. 4231201 from Commerce to CBP Re: Amended Cash Deposit Instructions for Wooden Bedroom Furniture, From the People's Republic of China (A-570-890) (August 18, 2004), A.P.R., Ex. 9.

After the publication of the Preliminary Determination and the Amended Preliminary Determination, Fairmont Designs, Inc. ("Fairmont"), a similarly-situated party to the investigation,⁷ and a party to the companion case No. 06-00249, requested that Commerce issue instructions to Customs to retroactively assess duties at the amended rate, and to return all excess cash deposits and release all excess bonds immediately.

On November 17, 2004, Commerce issued its final determination for this antidumping duty investigation, in which Dorbest's dumping margin rate was calculated to be 16.70%. See Wooden Bedroom Furniture from the People's Republic of China, 69 Fed.Reg. 67,313, 67,317 (Dep't Commerce Nov. 17, 2004)(final determination of sales at less than fair value)("Final Determination").

This determination was adopted and accompanied by the "Issues and Decision Memorandum" for the Less-Than-Fair-Value Investigation of Wooden Bedroom Furniture from the People's Republic of China. Issues & Decision Mem., A.P.R. Ex. 5. In the Issues & Decision Mem., Commerce rejected Fairmont's request that Commerce instruct Customs to assess duties at the newly amended rate which had been corrected for ministerial errors, not only prospectively but retrospectively (for the period of June 24, 2004 through September 9, 2004). Issues & Decision Mem., A.P.R. Ex. 5 at 336-337 (Cmt. 76).

In rejecting Fairmont's request, Commerce pointed to the statutory and regulatory...