Decca Hospitality Furnishings, LLC v. U.S., Slip Op. 06-43.

CourtU.S. Court of International Trade
Writing for the CourtPogue
Citation427 F.Supp.2d 1249
PartiesDECCA HOSPITALITY FURNISHINGS, LLC, Plaintiff, Maria Yee Inc., Plaintiff-Intervenor, v. UNITED STATES, Defendant, American Furniture Manufacturers Committee for Fair Trade, Defendant-Intervenor.
Docket NumberSlip Op. 06-43.,Court No. 05-00002.
Decision Date04 April 2006
427 F.Supp.2d 1249
DECCA HOSPITALITY FURNISHINGS, LLC, Plaintiff,
Maria Yee Inc., Plaintiff-Intervenor,
v.
UNITED STATES, Defendant,
American Furniture Manufacturers Committee for Fair Trade, Defendant-Intervenor.
Slip Op. 06-43.
Court No. 05-00002.
United States Court of International Trade.
April 4, 2006.

Page 1250

OPINION

POGUE, Judge:


Responding to the court's opinion in Decca Hospitality Furnishings, LLC v. United States, 29 CIT ___, 391 F.Supp.2d 1298 (2005) ("`Decca I"), Commerce determined on remand that Plaintiff, Decca Hospitality Furnishings, LLC ("Decca"), was entitled to a 6.65% cash deposit rate instead of the 198.08% "PRC-wide" rate assigned to Decca in Commerce's original determination. After remand, on December 20, 2005, the court entered judgment affirming Commerce's remand determination. Decca now moves the court to enforce the judgment entered after remand and, by consequence of enforcing that judgment, to order Commerce to correct Decca's cash deposit rate to reflect Commerce's Remand Determination; alternatively, Decca asks the court to issue a writ of mandamus compelling Commerce to implement the lawful cash deposit rate. For the reasons set forth below, the court grants Plaintiff's alternative request for mandamus relief.

Page 1251

BACKGROUND
A.

Under the antidumping statute ("the Statute"), 19 U.S.C. §§ 1673a (2000) et seq., Commerce is charged with investigating allegations of dumping by foreign producers or importers, and, if dumping is found, to counter the effects of such dumping by ordering a duty on dumped imports, i.e., an antidumping duty.1 In the course of an investigation, Commerce may, at different times, estimate the rate of antidumping duty that will ultimately be assessed. The initial estimate follows an affirmative preliminary determination that dumping has occurred. 19 U.S.C. § 1673b(d). Pursuant to this initial estimate, Commerce instructs the Bureau of Customs and Border Protection ("Customs") to collect estimated duties, sometimes referred to as "cash deposits," on entries of the merchandise that is subject to investigation. 19 U.S.C. § 1673b(d)(1)(B). See also 19 C.F.R. § 351.205; Torrington Co. v. United States, 44 F.3d 1572, 1577-78 (Fed.Cir. 1995); Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 976-77 (Fed.Cir. 1994).2 After Commerce completes its investigation, it issues a final determination which may (and usually does) adjust Commerce's initial estimate. 19 U.S.C. § 1673d(c)(1)(B)(ii); see also 19 U.S.C. §§ 1673e(a)(3), 1673e(c)(3); Cambridge Lee Indus. v. United States, 916 F.2d 1578, 1579 (Fed.Cir. 1990). This final determination is implemented in the antidumping duty order. See Am. Lamb Co., 785 F.2d at 999.

As mentioned, the cash deposit rate is merely an estimate of the eventual liability importers subject to an antidumping duty order will bear. Because the rate established by the final determination is based on past conduct, i.e., conduct occurring before the final determination, interested parties to an antidumping duty proceeding may ask Commerce to annually review the antidumping duty order in light of an importer's current practices. See 19 U.S.C. § 1675; Asociacion Colombiana de Exportadores de Flores v. United States, 903 F.2d 1555, 1559 (Fed.Cir. 1990); Floral Trade Council of Davis, Cal. v. United States, 888 F.2d 1366, 1369 (Fed.Cir. 1989). The process of review, called an "administrative review," establishes the actual liability the importer bears. 19 C.F.R. § 351.213.3

If no review is requested, the rate found in the final determination is the rate at which liability is assessed. See Consol. Bearings Co. v. United States, 412 F.3d 1266, 1270-71 (Fed.Cir. 2005); Kemira Fibres

Page 1252

Oy v. United States, 61 F.3d 866, 868-69 (Fed.Cir. 1995); Cambridge Lee Indus., 916 F.2d at 1579. However, if a review is requested, Commerce determines what, if any, dumping has actually occurred for goods entered for a certain time (the "period of review"). See Torrington Co., 44 F.3d at 1577-79; 19 C.F.R. § 351.213.

If the administrative review finds that the final determination understated the level of dumping, the importer must pay, in addition to the cash deposits already collected, the difference between the results of the administrative review and the results of the final determination, plus interest. 19 U.S.C. §§ 1673f(b)(1), 1677g; see also Torrington Co., 44 F.3d at 1578-79. However, if the administrative review reveals that the importer owes less than what Customs holds in cash deposits, Customs must refund this difference plus interest. 19 U.S.C. § 1673f(b)(2). The administrative review also determines the cash deposit rate to be applied until the next administrative review. See 19 U.S.C. § 1675(a)(2)(C); Allegheny Ludlum Corp. v. United States, 346 F.3d 1368, 1372-73 (Fed.Cir. 2003); Zenith Elecs. Corp. v. United States, 884 F.2d 556, 558 (Fed.Cir. 1989).

Once the actual rate of dumping for particular goods is established through an administrative review, Commerce instructs Customs to collect the required duties, or refund any monies owed, for the goods imported during that period. "Liquidation," which is the final assessment and collection of duties,4 see Olympia Indus., Inc. v. United States, 30 CIT ___, ___ Slip. Op. 06-04, 6 n. 1 (Jan. 6, 2006) (citing C.F.R. § 159.1 (2000); Ammex, Inc. v. United States, 419 F.3d 1342, 1345 n. 1 (Fed.Cir. 2005)), occurs only once for each entry of goods, and, for the most part, may not be subsequently undone, see Cambridge Lee Indus., 916 F.2d at 1579 (Fed. Cir. 1990) ("Once an entry has been liquidated, the duties paid cannot be recovered even if the payor subsequently prevails in its challenge to the antidumping order."); Zenith Radio Corp. v. United States, 710 F.2d 806, 810 (Fed.Cir. 1983) ("Zenith").

Because liquidation may not, in most cases, be subsequently undone, it is "suspended" until such time as a party may request an administrative review, and during the pendency of any such review. See 19 U.S.C. § 1673b(d)(2); 19 C.F.R. § 351.211(b)(3). See also Micron Tech. Inc. v. United States, 117 F.3d 1386, 1391 (Fed.Cir. 1997). Additionally, this court may also enjoin liquidation during the pendency of court proceedings. See, e.g., Yancheng Baolong Biochemical Prods. Co. v. United States, 406 F.3d 1377, 1381-82 (Fed.Cir. 2005); Timken Co. v. United States, 893 F.2d 337, 338-41 (Fed.Cir. 1990); Zenith, 710 F.2d at 810-12; see also 19 U.S.C. § 1516a(c)(1) & (2). From this brief survey it is apparent that there are real differences between the cash deposit rate and the liquidation rate.5

B.

On December 17, 2003, Commerce initiated an investigation of wooden bedroom furniture exporters/producers from the

Page 1253

People's Republic of China ("PRC"). See Wooden Bedroom Furniture from the People's Republic of China, 68 Fed.Reg. 70,228 (Dept.Comm. Dec. 18, 2003) (notice of initiation). In its investigation, Commerce rejected as untimely certain information submitted by Decca to prove its independence from state-control.6 Wooden Bedroom Furniture from the People's Republic of China, 69 Fed.Reg. 67,313, 67,313 (Dep't Commerce Nov. 17, 2004) (notice of final determination of sales at less than fair value) ("Final Determination") as amended, Wooden Bedroom Furniture from the People's Republic of China, 70 Fed.Reg. 329 (Dept. Commerce Jan. 4. 2005) (notice of amended final determination of sales at less than fair value and antidumping duty order) ("Amended Final Determination"). As a consequence of its decision to reject Decca's evidence as untimely, Commerce assigned Decca the rate it assigned to all importers who did not establish independence from state-control, i.e., the "PRC-wide" rate of 198.08%. Final Determination, 69 Fed.Reg. at 67,317. Pursuant to this assignment, Commerce instructed Customs to collect cash deposits from Decca at a rate of 198.08%. Amended Final Determination, 70 Fed.Reg. at 329.

As permitted under the Statute, 19 U.S.C. § 1516a, in this court, Decca sought review of Commerce's Final Determination, asserting that Commerce had failed to notify Decca (a) that it had requested information from Decca and (b) of the deadline by which Decca was required to respond to the information request. See Decca I, 29 CIT at ___, 391 F.Supp.2d at 1303. Because Commerce had failed to adequately provide notice of such requirements to Decca, Decca averred that Commerce had improperly rejected the evidence Decca submitted; Decca further argued that because Commerce's rejection of its evidence was improper, and because this evidence demonstrated that Decca was not in fact state-controlled, Decca was entitled to the "separate" rate of 6.65%, i.e., the rate Commerce assigned all non-mandatory respondents Who are independent of PRC, control, and that application of the 198.08% PRC-wide rate to Decca was unlawful. Id. at 1303-04. This court agreed, in part, finding that Commerce failed to follow its regulations in notifying interested parties of the information requested of them and the deadline for submitting such information. Id. at 1316-17 In so holding, the court remanded the case to Commerce to consider whether, despite the fact that Commerce had not followed its regulations, Decca had nevertheless received actual and timely notice of the relevant submissions and deadlines. Id. In the event Commerce could not establish that Decca had received notice of the submission requirements, the court ordered Commerce to determine whether Decca was entitled to a separate rate. Id. On remand, Commerce found that it was not feasible for it to demonstrate that Decca had received notice of the requested information and the relevant deadline for submitting such information. See Wooden Bedroom Furniture from the People's Republic of China, 71 Fed.Reg. 1,511 (Dep't Commerce Jan. 10, 2006) (notice of court decision not in harmony) ("Notice of Court Decision"). Commerce further found, after...

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