International Trading Co. v. U.S.

• Decision Date: 02 January 2004
• Docket Number: SLIP OP. 04-1.,No. 98-08-02658.,98-08-02658.
• Citation: 306 F.Supp.2d 1265
• Parties: INTERNATIONAL TRADING CO., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

306 F.Supp.2d 1265

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

SLIP OP. 04-1.

No. 98-08-02658.

United States Court of International Trade.

January 2, 2004.

Rode & Qualey, New York City (R. Brian Burke and William J. Maloney), for Plaintiff.

Peter D. Keisler, Assistant Attorney General, Civil Division, United States Department of Justice; Barbara S. Williams, Acting Attorney in Charge, International Trade Field Office; James A. Curley, Attorney, Commercial Litigation Branch, Civil Division; Edward N. Maurer, Office of Assistant Chief Counsel, United States Customs Service, Dean A. Pinkert, Office of Chief Counsel for Import Administration, United States Department of Commerce, for Defendant, of counsel.

OPINION

WALLACH, Judge.

I INTRODUCTION

This action comes before the court on Plaintiff International Trading Co.'s ("Int'l Trading") Motion for Summary Judgment ("Plaintiff's Motion") and Defendant's Cross-Motion for Summary Judgment ("Defendant's Cross Motion"). Plaintiff is an importer of shop towels from Bangladesh who seeks a refund of the increased antidumping duty applied by the United States Customs Service ("Customs")¹ plus the accrued interest paid on its entry. Plaintiff argues that deemed liquidation occurred six months after the Federal Register notice, which was prior to the date on which Customs actually liquidated its entry. Defendant claims that Customs correctly applied the dumping margin and liquidated Plaintiff's entry and that there was no deemed liquidation. The court has jurisdiction pursuant to 28 U.S.C. § 1581(a). For the reasons set forth below, the court grants summary judgment to Plaintiff.

II BACKGROUND

This case is similar in all material respects to the action that was the subject of this court's decision in Int'l Trading Co. v. United States, 110 F.Supp.2d 977 (CIT 2000) ("Int'l Trading I"), aff'd in Int'l Trading Co. v. United States, 281 F.3d 1268 (Fed.Cir.2002) ("Int'l Trading II"), reh'g denied, 2002 U.S.App. LEXIS 11482, except that the entry of shop towels covered by this case was made on or about March 3, 1994, approximately one month later than the last entry covered by Int'l Trading II. Thus, this entry falls within the period covered by the third administrative review of the antidumping order against shop towels from Bangladesh, rather than the period covered by the second administrative review.

Commerce initiated the third administrative review of shop towels from Bangladesh by notice published in the Federal Register on April 14, 1995, Initiation of Antidumping and Countervailing Duty Administrative Reviews, 60 Fed.Reg. 19,017 (Apr. 14, 1995), and liquidation of Int'l Trading's entry was suspended pursuant to 19 U.S.C. § 1673(d). The entries covered by the third review are subject to the 1994 amendments under the Uruguay Round Agreements Act ("URAA"); those covered by the second review were not. URAA, Pub.L. No. 103-465, 108 Stat. 4809 (1994); See also Torrington Co. v. United States, 68 F.3d 1347, 1352 (Fed.Cir.1995).

In Int'l Trading II, the Federal Circuit affirmed this court's decision that the entries covered by the second administrative review were deemed liquidated pursuant to 19 U.S.C. 1504(d) (1993) (" § 1504(d)(1993)"), holding that, in the context of entries whose liquidation had been suspended by statute pending completion of an administrative review, "the publication of the final results in the Federal Register constituted notice from Commerce to Customs that the suspension of liquidation on the subject entries had been removed" within the meaning of § 1504(d) (1993). Int'l Trading II, 281 F.3d at 1277. The Federal Circuit also observed that § 1504(d) (1993) had subsequently "been amended, but not in ways material to the issues in [that] case." Id. at 1271.

The final results of the third administrative review covering the entry that is the subject of the instant action were published in the Federal Register on October 30, 1996. Shop Towels From Bangladesh; Final Results of Antidumping Duty Administrative Review, 61 Fed.Reg. 55,957 (Oct. 30, 1996). Commerce issued liquidation instructions to Customs by e-mail on July 1, 1997, informing Customs that suspension of liquidation was lifted and to liquidate entries subject to the administrative review. Customs liquidated this entry with increased antidumping duties on September 26, 1997, almost one year after publication of the final results. Plaintiff protested the liquidation, arguing the entry had been deemed liquidated pursuant to 19 U.S.C. 1504(d) (1994) (" § 1504(d)(1994)"). This protest was denied by Customs on the grounds that the period for deemed liquidation was not triggered until Customs received liquidation instructions from Commerce. Shop Towels From Bangladesh, 61 Fed.Reg. 55,957. Upon denial of its protest, Plaintiff commenced this action and now seeks a refund of excess duty and interest paid on the entry.

III

APPLICABLE LEGAL STANDARDS

A

STANDARD OF REVIEW

Summary judgment is appropriate when, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affadavits, 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." USCIT R. 56(d); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In a motion for summary judgment, the movant bears the burden of demonstrating that there is no genuine issue of material fact. SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116 (Fed.Cir.1985). This may be accomplished by producing evidence showing the lack of any genuine issue of material fact or, where the non-moving party bears the burden of proof at trial, by demonstrating that the nonmovant has failed to make a sufficient showing to establish the existence of an element essential to its case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The inferences drawn from the underlying facts are viewed in favor of the nonmovant.²

IV ANALYSIS

A Customs' Interpretation of 19 U.S.C. § 1504(d) Is an Impermissible Construction of the Statute

Two statutes are relevant to this case. First, Plaintiff's claim that the entry in issue was deemed liquidated at the rate and amount of duty deposited is based on § 1504(d) (1994), which directs that

[e]xcept as provided in [19 U.S.C. 1675(a)(3)], when a suspension required by statute or court order is removed, the Customs Service shall liquidate the entry, unless liquidation is extended under subsection (b) of this section, within 6 months after receiving notice of the removal from the Department of Commerce. Any entry not liquidated by the Customs Service within 6 months after receiving such notice shall be treated as having been liquidated at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record.

The first clause of this provision, referencing 19 U.S.C. § 1675(a)(3), was added by the URAA § 220(c) in 1994.³ H.R. Doc No. 103-316 at 143 (1994); Plaintiff's Motion, App. Exh. J. In 1993, prior to the passage of the URAA, § 1504(d) was amended by Congress.⁴ See Int'l Trading II, 281 F.3d at 1272; North American Free Trade Agreement Implementation Act, Pub.L. No. 103-182, 107 Stat.2057, sec. 641 (1993). The Federal Circuit explained that one of the effects and rationales of the 1993 amendment to § 1504(d) was a "consequence of Customs' failure to liquidate within [the] six month period," suggesting that "one of the principal objectives of the 1993 amendments [was not giving] the government the unilateral ability to extend the time for liquidating entries indefinitely." Int'l Trading II, 281 F.3d at 1272-73.

The second relevant statute is subparagraph B of § 1675(a)(3), the provision newly referenced in § 1504(d) (1994). The relevant section, § 1675(a)(3)(B), provides that

[i]f the administering authority orders any liquidation of entries pursuant to a review under paragraph (1), such liquidation shall be made promptly and, to the greatest extent practicable, within 90 days after the instructions to Customs are issued. In any case in which liquidation has not occurred within that 90-day period, the Secretary of the Treasury shall, upon the request of the affected party, provide an explanation thereof.

The United States contends that the entry in question is subject wholly to § 1675(a)(3)(B) as a result of the 1994 amendatory language in § 1504(d), or, in the alternative, that the addition of § 1675(a)(3)(B) alters the triggering date for deemed liquidation, effectively challenging the decision and rationale of the Federal Circuit in Int'l Trading II. Int'l Trading argues that § 1504(d) (1994) and § 1675(a)(3)(B) work in concert, so that the former deemed liquidation consequence applies even if an entry is also subject to the latter. In other words, Plaintiff argues that there is no need for this court even to reach § 1675(a)(3)(B) because deemed liquidation would have happened, in this case, within six months of the Federal Register notice as per § 1504(d). Plaintiff's argument is correct.

Textual Analysis Shows International Trading II's Holding of Notice from Publication Requires No Reconsideration

Statutory construction begins with the plain language of the statute. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). The court should look beyond the plain meaning of the statute only if the language is ambiguous or if a literal interpretation would frustrate the purpose behind the statute. Bob Jones Univ. v. United States, 461 U.S. 574, 586, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983). Here, neither the plain language of § 1504(d) (1994) and § 1675(a)(3)(B), nor applicable principles of statutory interpretation, require reconsideration of the issues decided in Int'l Trading II. Neither provision changes the required method of notice⁵ from...