Goodluck India Ltd. v. United States
| Docket Number | Slip Op. 23-164,Court No. 22-00024 |
| Decision Date | 21 November 2023 |
| Citation | 670 F.Supp.3d 1353 |
| Parties | GOODLUCK INDIA LIMITED, Plaintiff, v. UNITED STATES, Defendant, and Arcelormittal Tubular Products, Michigan Seamless Tube, LLC, PTC Alliance Corp., Webco Industries, Inc., Zekelman Industries, Inc., and Plymouth Tube Co., USA, Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Jordan C. Kahn, Grunfeld Desiderio Lebowitz Silverman & Klestdt, LLP, of New York, N.Y. and Washington, D.C., argued for Plaintiff Goodluck India Limited. With him on the briefs were Ned H. Marshak and Michael S. Holton.
Ioana C. Meyer, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for Defendant United States. With her on the briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Claudia Burke, Assistant Director. Of Counsel Ayat Mujais, Senior Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance.
R. Alan Luberda, Kelley Drye & Warren, LLP, of Washington, D.C., argued for Defendant-Intervenors ArcelorMittal Tubular Products, Michigan Seamless Tube, LLC, PTC Alliance Corp., Webco Industries, Inc., Zekelman Industries, Inc., and Plymouth Tube Co., USA. With him on the briefs were David C. Smith, Jr. and Julia A. Kuelzow.
At the heart of this case is a challenging and uncommon question of trade administration and procedure: what obligation does a foreign exporter or producer have in requesting ongoing administrative reviews ("ARs") when, pending a final court decision after a Timken notice, that entity has been provisionally exempted from paying antidumping duties?1 Plaintiff Goodluck India Limited ("Goodluck") brings this action to challenge administrative action stemming from the assessment of antidumping duties by Commerce on entries of certain cold-drawn mechanical tubing of carbon and alloy steel ("CDMT")2 from the Republic of India. Defendant the United States ("the Government") opposes, as do Defendant-Intervenors ArcelorMittal Tubular Products, Michigan Seamless Tube, LLC, PTC Alliance Corp., Webco Industries, Inc., Zekelman Industries, Inc., and Plymouth Tube Co., USA (collectively, "Domestics").
In April 2018, Commerce assigned Goodluck, a producer and exporter of Indian CDMT, a final antidumping duty rate of 33.7 percent after conducting a less-than-fair-value investigation. In so doing, Commerce rejected Goodluck's submission of supplemental data and relied on adverse facts available ("AFA") under 19 U.S.C. § 1677e(b). Goodluck promptly filed suit in the U.S. Court of International Trade ("CIT") to challenge Commerce's final determination. Holding for Goodluck, the CIT concluded that Commerce unlawfully rejected Goodluck's supplemental data. The CIT remanded to Commerce for reconsideration, and on remand, Commerce recalculated Goodluck's dumping margin as zero percent under respectful protest. In April 2020, the CIT sustained that remand redetermination and entered judgment for Commerce, after which Commerce issued a Timken notice. Domestics timely appealed the CIT's judgment to the U.S. Court of Appeals for the Federal Circuit ("Federal Circuit"). In August 2021, the Federal Circuit reversed the CIT and concluded that Commerce's initial duty rate of 33.7 percent was indeed lawful. The CIT entered judgment for the 33.7 rate in November 2021.
What's past is prologue. The subject of current controversy is a notice that Commerce issued in December 2021 following the Federal Circuit's decision. See Notice of Second Amended Final Determination; Notice of Amended Order; Notice of Resumption of First and Reinstatement of Second Antidumping Duty Administrative Reviews; Notice of Opportunity for Withdrawal; and Notice of Assessment in Third Antidumping Duty Administrative Review, 86 Fed. Reg. 74069 (Dep't Com. Dec. 29, 2021), P.R. 12 ("December 2021 Notice"). Goodluck contests two particular agency actions in this notice. First, Commerce instructed U.S. Customs and Border Protection ("Customs") to liquidate certain of Goodluck's entries, entered from June 1, 2020, through May 31, 2021, at the 33.7 percent rate rather than the zero percent rate because Goodluck did not timely file an AR request during the anniversary month; during the anniversary month, however, the duty on goods produced and exported by Goodluck was provisionally zero percent. Id. at 74070. Second, Commerce designated September 10, 2021, as the effective date for collecting cash deposits at the 33.7 percent rate. Id. at 74070-71. Goodluck attempted to administratively challenge the December 2021 Notice, and Commerce determined that Goodluck was entitled to no relief soon thereafter. See Mem. from N. James to S. Thompson, re: Notice of Second Amended Final Determination at 4-6 (Dep't Com. Jan. 19, 2022), P.R. 16 ("January 2022 Memorandum"). Goodluck moves for judgment on the agency record to contest the December 2021 Notice and January 2022 Memorandum, arguing that Commerce's actions violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, and the Due Process Clause of the Fifth Amendment of the U.S. Constitution.
The court first sustains Commerce's instruction to Customs to liquidate certain of Goodluck's entries. Commerce's December 2021 Notice was a reasonable exercise of procedural discretion that did not contravene the Constitution, statute, regulation, or established agency practice. The court next concludes that any error regarding the cash deposit effective date would be harmless because an AR that encompasses any of the alternative dates is already underway. Judgment on the agency record is accordingly entered for Commerce.
Dumping refers to the practice of selling foreign products for less than fair value in the United States. See Saha Thai Steel Pipe (Pub.) Co. v. United States, 635 F.3d 1335, 1338 (Fed. Cir. 2011). Commerce identifies dumping by assessing whether the export price of an investigated product, as measured by U.S. sales price, is lower than the product's normal value, as typically measured by the price of the product in the home market. See Maverick Tube Corp. v. Toscelik Profil, 861 F.3d 1269, 1271 (Fed. Cir. 2017); see also 19 U.S.C. § 1677b(a)(1)(B)(i). Where Commerce identifies dumping, and where the ITC makes the additional requisite finding that the sale of foreign merchandise below fair value is materially injuring, threatening, or impeding the establishment of an industry in the United States, see Diamond Sawblades Mfrs. Coal. v. United States, 866 F.2d 1304, 1306 (Fed. Cir. 2017), the agency imposes antidumping duties on such merchandise proportionate to the amount by which normal value exceeds the export price, see 19 U.S.C. §§ 1673, 1677(35)(A).
Within seven days of notification of the ITC's final affirmative determination, Commerce must publish an antidumping order that instructs Customs to assess an antidumping duty. See 19 U.S.C. §§ 1673d, 1673e(a); 19 C.F.R. § 351.210(d); Diamond Sawblades Mfrs. Coal. v. United States, 626 F. 3d 1374, 1376 (Fed. Cir. 2010). Because the United States uses a retrospective system, final antidumping duties are assessed after merchandise is imported. 19 C.F.R. § 351.212; see also 19 U.S.C. §§ 1673d(c)(1)(B)(ii), 1673e(c)(3). Specifically, Commerce instructs Customs to require cash deposits for the assessed duties for each entry of the subject merchandise. See 19 U.S.C. § 1673d(c)(1)(B)(ii); 19 C.F.R. § 351.210(d); Diamond Sawblades, 626 F. 3d at 1376. "Cash deposits . . . are considered estimates of the duties that the importer will ultimately have to pay as opposed to payments of the actual duties." Sioux Honey, 672 F.3d at 1047.
Three interrelated administrative procedures following the publication of a final determination are at play in this case. Each is summarized below.
As part of the retrospective system, the final computation or ascertainment of duties on entries—called liquidation—occurs later. See 19 C.F.R. § 159.1. The duties to be assessed at liquidation are generally determined through an independent process: the AR of an antidumping order. See 19 C.F.R. § 351.212; see also 19 U.S.C. §§ 1673d(c)(1)(B)(ii), 1673e(c)(3). At least once every twelve months beginning on the one-year anniversary of the publication of the antidumping order, Commerce publishes a notice of opportunity to request an AR, which allows interested parties to file requests for reviewing the duties on merchandise entered during a particular period of review ("POR"). See 19 U.S.C. § 1675(a)(1); BMW of N. Am. LLC v. United States, 926 F.3d 1291, 1298 (Fed. Cir. 2019). During the anniversary month, "an exporter or producer covered by an order" specifically "may request in writing that the Secretary conduct an administrative review of only that person." 19 C.F.R. § 351.213(b)(2).3
If Commerce receives a timely request for an AR, it publishes a notice of initiation of AR in the Federal Register. See BMW, 926 F.3d at 1298. Commerce then gathers pertinent information by "distribut[ing] or mak[ing] available questionnaires to those entities Commerce designated in the notice of [i]nitiation." Id. (quoting Transcom, Inc. v. United States, 24 C.I.T. 1333, 1335, 123 F. Supp. 2d 1372, 1374 (2000)). Finally, Commerce "determines the antidumping duty rates applicable to each entry or type of entries and publishes these determinations in the Federal Register." Id. This final antidumping "rate obtained through the administrative review is called the liquidation rate." Sioux Honey, 672 F.3d at 1047. Following the final determination of duties published in the Federal Register, 19 C.F.R. § 351.221(b)(5), Commerce subsequently transmits liquidation instructions to Customs. 19 C.F.R. § 351.221(b)(6); Sioux Honey, 672 F.3d at 1047. These instructions direct Customs to liquidate cash deposits for the POR at the liquidation rate...
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