Ipsco, Inc. v. US, Court No. 86-06-00753.

• Decision Date: 21 July 1988
• Docket Number: Court No. 86-06-00753.
• Citation: 12 CIT 676,692 F. Supp. 1368
• Parties: IPSCO, INC. and Ipsco Steel, Inc., Plaintiffs, and The Algoma Steel Corp., Ltd. and Sonco Steel Tube Div. Ferrum, Inc., Plaintiff-Intervenors, v. The UNITED STATES, Defendant, and Lone Star Steel Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

692 F. Supp. 1368

12 CIT 676

IPSCO, INC. and Ipsco Steel, Inc., Plaintiffs, and The Algoma Steel Corp., Ltd. and Sonco Steel Tube Div. Ferrum, Inc., Plaintiff-Intervenors, v. The UNITED STATES, Defendant, and Lone Star Steel Company, Defendant-Intervenor.

Court No. 86-06-00753.

United States Court of International Trade.

July 21, 1988.

Barnes, Richardson & Colburn, Rufus E. Jarman, Jr., New York City, and Matthew J. Clark, for plaintiffs.

John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch (Platte B. Moring, III), Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendant.

MEMORANDUM OPINION AND ORDER

RESTANI, Judge:

Plaintiffs move for a preliminary injunction staying liquidation in this antidumping matter, so that this court's final decision resolving the challenge to the administrative determination will have full effect.¹See 19 U.S.C. § 1516a(c)(2) and (e) (1982). As to the motion for preliminary injunction, there is little factual difference between Oki Electric Indus. Co. v. United States, 11 CIT ___, 669 F.Supp. 480 (1987) and the case at hand. Defendant urges that the court ignore Oki, alleging that it is incorrect, and that the court follow earlier cases such as Fundicao Tupy S.A. v. United States, 11 CIT ___, 669 F.Supp. 437 (1987), appeal dismissed as moot, 841 F.2d 1101 (Fed.Cir.1988) (in light of CIT's intervening final decision on the merits at 12 CIT ___, 678 F.Supp. 898 (1988), appeal docketed, No. 88-1233 (Fed.Cir. Feb. 11, 1988)) and British Steel Corp. v. United States, 647 F.Supp. 928 (1986), appeal dismissed as moot, No. 87-1050 (Fed.Cir. Mar. 31, 1987) (due to intervening agency action), vacated in part, 11 CIT ___, 661 F.Supp. 68 (1987), dismissed, 12 CIT ___, Slip Op. 88-76 (June 13, 1988) available on WESTLAW, 1988 WL 64914 (pursuant to settlement agreement). But see Fundicao Tupy S.A. v. United States, 11 CIT ___, 671 F.Supp. 27 (1987) and 12 CIT ___, Slip Op. 88-32 (March 16, 1988) available on WESTLAW, 1988 WL 24558 (granting injunctions pending appeals).

I.

Defendant's main argument is that the court lacks jurisdiction to provide relief. The court finds the reasoning of Oki persuasive on the issue of jurisdiction and sees little in either Fundicao Tupy or British Steel which indicates that the court does not have jurisdiction to provide injunctive relief in this case. Rather, the court finds defendant's arguments to relate to former statutes and not to the ones which govern this action.

Under the Antidumping Act of 1921, which was repealed by the Trade Agreements Act of 1979 and recodified with amendments into the Tariff Act of 1930, antidumping findings were generally not subject to judicial review until actual duties had been assessed and the agency was afforded an opportunity to review its determination in response to filed protests or petitions. 19 U.S.C. §§ 1514, 1515, 1516(a)(c) (1976). See S.Rep. No. 249, 96th Cong., 1st Sess. 245-46, 250 (1979); H.R.Rep. No. 317, 96th Cong., 1st Sess. 181-82 (1979), U.S.Code Cong. & Admin.News 1979, p. 381. Where an investigation culminated in an affirmative antidumping finding, duties were assessed on an entry-by-entry basis at Customs field offices, pursuant to "master lists" which outlined the appropriate calculations and adjustments to be made in a given case. General Accounting Office, Report to the Congress: U.S. Administration of the Antidumping Act of 1921, ID79-15, at 33-37 (March 15, 1979). These master lists were based upon exporters' responses to questionnaires, updated every 6 to 12 months. Id. at 33-34. Increasingly large backlogs of published master lists resulted in significant delays in the assessment of antidumping duties. Id. at 35. In addition, participation at the assessment stage was quite limited, and often on an ex-parte basis. See Implementation of the Multilateral Trade Negotiations: Hearings Before the Subcomm. on International Trade of the Senate Comm. on Finance, 96th Cong., 1st Sess. 114, 124 (1979) (statement of Lewis W. Foy, Chairman, American Iron & Steel Institute); Multilateral Trade Negotiations: Hearings Before the Subcomm. on Trade of the House Comm. on Ways and Means, 96th Cong., 1st Sess. 108, 111 (1979) (statement of Charles Owen Verrill, Jr., on behalf of AMF, Inc.).

In 1979, the assessment phase of antidumping actions was formalized and restructured to provide for automatic annual assessment proceedings, commonly referred to as "751 reviews." 19 U.S.C. § 1675 (1982) (section 751 of the Tariff Act of 1930). The 1979 Act substituted the time consuming assessment and protest process of the 1921 Act with the new review procedures of section 751, affording parties an increased role in the initial stages of the assessment process and providing enhanced procedural safeguards. S.Rep. No. 249, at 79-81; H.R.Rep. No. 317, at 71-72, 181-82, U.S.Code Cong. & Admin.News 1979, p. 381. In addition, the 1979 Act amended the antidumping law to provide for immediate judicial review of the investigative phase, prior to the institution of a 751 review and assessment of duties. 19 U.S.C. § 1516a(a)(2) (1982 and Supp. IV 1986). See S.Rep. No. 249, at 244-47; H.R. Rep. No. 317, at 179-182, U.S.Code Cong. & Admin.News 1979, p. 381. These new provisions for judicial review of initial antidumping duty determinations were intended to expedite judicial review, shorten the overall review process, and reduce the redundancy of administrative proceedings. S.Rep. No. 249, at 250-51; H.R.Rep. No. 317, at 181-82, U.S.Code Cong. & Admin. News 1979, p. 381.

In 1984, Congress further amended the statute to provide for 751 reviews only upon request. This change was described as "designed to limit the number of reviews in cases in which there is little or no interest, thus limiting the burden on petitioners and respondents, as well as the administering authority." H.R.Rep. No. 1156, 98th Cong., 2d Sess. 181 (1984) (Conference Report). See H.R.Rep. No. 725, 98th Cong., 2d Sess. 22-23 (1984), U.S.Code Cong. & Admin.News 1984, p. 4910.²

The problem which confronts the parties in this case stems from the residue left by congressional reconsideration of the rate of assessment proceedings, currently conducted by the Department of Commerce, International Trade Administration (ITA). In 1979 Congress substituted a system of assessment, wherein participation was limited largely to post-assessment administrative protest and review, with a system where pre-assessment participation was automatically made available to all parties. In 1984, Congress limited the opportunity for pre-assessment participation, that is, the 751 review, to instances in which it was requested. It failed, however, to clearly indicate the basis for assessment when no 751 review was requested. Congress only stated that, absent a requested 751 review, ITA should provide for the assessment of antidumping duties "including the elimination of suspension of liquidation, and/or the conversion of cash deposits of estimated duties, previously ordered." H.R.Rep. No. 1156, at 181, U.S.Code Cong. & Admin. News 1984, p. 4910. ITA responded by providing for the automatic assessment of antidumping duties at the cash deposit, or bond, rate in effect at the time of entry. 19 C.F.R. § 353.53a(d) (1987). See 19 C.F. R. § 355.10(d) (1987) (similar provision governing countervailing duty cases). Although such regulations might properly apply absent a court challenge to those cash deposit rates, they do not apply in all cases where those cash deposit rates are themselves the subject of a judicial challenge. See Oki, 669 F.Supp. at 485 and n. 2. Furthermore, those regulations cannot alter the existing statutory scheme, which provides for liquidation in accordance with a disposition of this court,³ either prospectively, with regard to subsequently entered merchandise, or retrospectively, where liquidation is enjoined by this court in accordance with its statutory authority. 19 U.S. C. § 1516a(e) (1982) (liquidation in accordance with final court decision); 19 U.S.C. § 1516a(c)(2) (injunctive relief); 28 U.S.C. § 2643(c)(1) (1982) (relief).

Against this background, the court is unpersuaded by defendant's argument that the statutory scheme requires plaintiffs, such as the ones here, in every case to request a separate 751 proceeding, and pursue judicial review of the results of that proceeding, in order to receive the benefit of judicial review.⁴ Defendant's reading of the statutory scheme is inconsistent with the congressional intent of the 1984 Act to ease the burdens of the parties and ITA by making 751 reviews optional, as well as the intent of the 1979 Act to reduce delays and redundancy in the judicial review process by providing for reviews prior to the institution of assessment proceedings.⁵

Similarly, to the extent one interprets the first Fundicao Tupy decision to be based on lack of jurisdiction it must also be interpreted to be based on concerns not reflected in the 1979 and 1984 acts. Specifically, Fundicao Tupy stated that the statutory scheme "contemplates that Commerce, in the first instance, be afforded an opportunity to review its determinations in the course of calculating actual dumping margins for a given period." 669 F.Supp. at 439. This appears consistent with the statutory scheme under the 1921 Act, where judicial review was not available until duties were assessed and the agency was given the opportunity to review its determinations, through the protest and review mechanisms, in the first instance. The 1979 Act restructured the balance between administrative and judicial reviews of agency actions, however, providing for judicial review in the first instance, before the agency was afforded an opportunity to review its own determination. With the elimination of automatic 751 reviews in 1984, Congress made it possible for an antidumping order to be judicially reviewed, without being administratively reviewed.

In...