International Trading Co. v. U.S.

• Decision Date: 14 July 2000
• Docket Number: Slip Op. 00-83.,Court No. 97-09-01557.
• Citation: 110 F.Supp.2d 977
• Parties: INTERNATIONAL TRADING CO., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

110 F.Supp.2d 977

INTERNATIONAL TRADING CO., Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 00-83.

Court No. 97-09-01557.

United States Court of International Trade.

July 14, 2000.

Rode & Qualey (R. Brian Burke), for Plaintiff.

David W. Ogden, Acting Assistant Attorney General; Joseph I. Liebman, Attorney in Charge, International Trade Field Office; James A. Curley, Commercial Litigation Branch, Civil Division, Department of Justice; Edward N. Maurer, Office of the Assistant Chief Counsel, United States Customs Service, Joseph M. Spraragen and Stacy J. Ettinger, Office of the Assistant Chief Counsel for Import Administration, of counsel, for Defendant.

OPINION

WALLACH, Judge.

I. Preliminary Statement

Plaintiff, International Trading Company, commenced this action to challenge the dumping margin applied by Customs in liquidating certain entries of its goods. Plaintiff contends the subject entries should have been deemed liquidated pursuant to 19 U.S.C. 1504(d) (as amended effective Dec. 8, 1993) (hereinafter, " § 1504(d) (1993)")¹ at the amount of duty deposited at the time of entry, rather than at the higher antidumping duty rate set by Commerce following its review. Plaintiff argues that deemed liquidation is required because Customs failed to liquidate the entries at issue within six months of the date on which Customs received notice of the removal of suspension of liquidation, and that notice was received on the date Commerce published the final results of its administrative review, or, in the alternative, when Commerce sent an email to Customs informing it of the publication of the final results. Plaintiff's Moving Brief at 6-10. The United States asserts Customs did not receive notice within the meaning of § 1504(d) until Commerce issued liquidation instructions to Customs, which, according to Defendant, did not occur until August 29, 1996, less than two months prior to the date on which Customs actually liquidated the subject entries. Defendant's Opposition Brief at 8-10, 16. Because those liquidation instructions were issued fewer than six months prior to liquidation, Defendant says deemed liquidation is not required. Id. at 16.

The parties have cross-moved for summary judgment pursuant to USCIT Rule 56. The parties' motions present a single issue for resolution: what action triggers the running of the time period during which Customs must liquidate or face deemed liquidation under 19 U.S.C. § 1504(d)? Because Customs received notice within the meaning of § 1504(d) on February 13, 1996, when it received actual notice that the final results of the administrative review had been published, summary judgment is granted for Plaintiff.

This Court has jurisdiction pursuant to 28 U.S.C. 1581(a).

II. Background The Original Antidumping Order

Plaintiff is one of several Bangladeshi manufacturers of shop towels who were named as respondents in an antidumping petition filed on March 29, 1991. Commerce published an affirmative preliminary determination, triggering the statutory suspension of liquidation of Bangladeshi shop towel entries made on or after September 12, 1991. See Preliminary Determination of Sales at Less Than Fair Value: Shop Towels From Bangladesh, 56 Fed.Reg. 46411 (Dep't Comm., Sept. 12, 1991). After investigation, Commerce calculated a final dumping margin for Plaintiff of 2.7% ad valorem. Final Determination of Sales at Less Than Fair Market Value: Shop Towels From Bangladesh, 57 Fed.Reg. 3996 (Dep't Comm., Feb. 3, 1992). Commerce published its antidumping order on March 20, 1992, see Antidumping Duty Order: Shop Towels From Bangladesh, 57 Fed.Reg. 9688 (Dep't Comm., Mar. 20, 1992) (the "initial order"), and this became the deposit rate for entries of shop towels manufactured by Plaintiff.

This rate continued in force until September 21, 1995, when Commerce published the final results of the first administrative review of the initial order. Following this review, Commerce increased the deposit rate on Plaintiff's shop towel entries from 2.72% to 8.3%. See Shop Towels From Bangladesh: Final Results of Antidumping Duty Administrative Review, 60 Fed.Reg. 48966 (Dep't Comm., Sept. 21, 1995).

The Second Administrative Review

Commerce initiated a second administrative review, which includes all entries that are the subject of this action,² by notice published in the Federal Register on April 15, 1994. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 59 Fed Reg. 18099 (Dep't Comm., Apr. 15, 1994).

The August 1994 E-mail

Although the second review had not been completed, Commerce sent Customs an e-mail on August 16, 1994, entitled "Non-Administrative Review Liquidation Instructions" (the "8/94 e-mail"), which related to Bangladeshi shop towel entries filed during the second review period, and directed Customs to "liquidate all entries for all firms" at the cash deposit or bonding rate required at the time of entry. The 8/94 e-mail also stated that "this telex constitutes the immediate lifting of suspension of liquidation of entries for the [subject] merchandise." These instructions were improperly issued, because the administrative review was not yet complete and the Final Results had not been issued. Commerce did not rescind them, nor did it notify Customs that the instructions were erroneous, but Customs did not liquidate Plaintiff's entries in response to the 8/94 e-mail. This e-mail stated that there were no restrictions on the release of its contents to the public.

February 12, 1996 Publication of the Final Results of the Second Administrative Review

On February 12, 1996, Commerce published the final results of its second administrative review in the Federal Register. Shop Towels From Bangladesh; Final Results of Antidumping Duty Administrative Review, 61 Fed.Reg. 5377 (Dep't Comm., Feb. 12, 1996) (the "Final Results"). In these Final Results, Commerce assigned Plaintiff a margin of 42.31%.³

The February 13, 1996 E-mail

On February 13, 1996, the day after it published the Final Results, Commerce sent an e-mail (the "2/96 e-mail") to Customs, notifying it that the second review had been completed and referencing the Federal Register notice. However, this e-mail stated: "Do not liquidate any entries covered by this review until you have received liquidation instructions." The 2/96 e-mail stated that there were no restrictions on public release of its contents.

The August 29, 1996 E-mail

On August 29, 1996, Commerce sent another e-mail (the "8/96 e-mail") to Customs, instructing Customs to liquidate Plaintiff's entries at the dumping margin specified in the Final Results. This e-mail indicated that it was not for public disclosure.

Customs Liquidates the Subject Entries on October 11, 1996 and October 18, 1996

On October 11 and 18, 1996, Customs liquidated Plaintiff's subject entries at the dumping margin specified in the Final Results. This liquidation occurred well over two years after the 8/94 e-mail; almost eight months after the Final Results were published in the Federal Register and the 2/96 e-mail was sent; and one and a half months after the 8/96 e-mail was sent.

Plaintiff filed a timely protest of these liquidations; Customs denied Plaintiff's protest; Plaintiff paid the increased duties; and Plaintiff commenced this action.

III. Analysis

A. Standard of Review

Under USCIT R. 56(d), summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Glaverbel Societe Anonyme v. Northlake Mktg. & Supply, Inc., 45 F.3d 1550, 1560 (Fed.Cir.1995); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed.Cir.1987). In considering whether material facts are in dispute, the evidence must be considered in a light most favorable to the non-moving party, drawing all reasonable inferences in its favor, as well as all doubts over factual issues. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Mingus, 812 F.2d at 1390-91. Nevertheless, "[w]hen a motion for summary judgment is made and supported, ... an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial." U.S.C.I.T. R. 56(f). Once it is clear there are no material facts in dispute, a case is proper for summary adjudication.

B.

The Parties' Conflict Is Over The Trigger For Deemed Liquidation Pursuant To 19 U.S.C. § 1504(d).

Plaintiff contends that the six-month period for deemed liquidation under 19 U.S.C. § 1504(d) (1993) commences upon Commerce's publication in the Federal Register of the Final Results, an act required under 19 U.S.C. § 1675(a)(1). Plaintiff's Moving Brief at 12. Plaintiff asserts that publication is the method by which Customs "receives notice" within the meaning of § 1504(d). Id. at 13-14. Plaintiff notes that suspension is commenced by publication in the Federal Register of an affirmative preliminary or final determination. 19 U.S.C. § 1673b(c), 19 U.S.C. § 1673d(c)(1)(C). Plaintiff contends that suspension is removed by publication as well, and that this latter publication serves the dual purpose of "notice" to Customs of the removal. Plaintiff's Moving Brief at 12.

The Government argues that receipt by Customs of notice of removal of suspension — either through publication or by communications between Commerce and Customs — is not enough to trigger the provisions of § 1504(d). Defendant's Opposition Brief at 6. Rather, the Government says, even...