Itochu Building Prods. v. United States

• Decision Date: 19 September 2012
• Citation: 865 F.Supp.2d 1332
• Parties: ITOCHU BUILDING PRODUCTS, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

865 F.Supp.2d 1332

ITOCHU BUILDING PRODUCTS, Plaintiff,

v.UNITED STATES, Defendant.

United States Court of

International Trade.

Slip Op. 12–122.

Court No. 11–00208.

Sept. 19, 2012.

Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, NY, argued for plaintiff. With him on the brief were Mark E. Pardo, Joseph M. Spraragen, Andrew T. Schutz, and Bruce M. Mitchell.

Carrie A. Dunsmore, Trial Counsel, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy. Of counsel on the brief was Nathaniel J. Halvorson, Attorney–International, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.

OPINION

STANCEU, Judge:

This litigation concerns an antidumping duty order issued by the International Trade Administration, U.S. Department of Commerce (“Commerce” or “the Department”) on certain steel nails (“subject merchandise”) from the People's Republic of China (“China”). Compl. ¶ 1 (July 21, 2011), ECF No. 8. At the request of the domestic industry, Commerce conducted a review of the order based on changed circumstances and revoked the order as to four types of steel nails.¹Certain Steel Nails From the People's Republic of China: Final Results of Antidumping Duty Changed Circumstances Review, 76 Fed.Reg. 30,101 (May 24, 2011) (“ Final Results of Changed Circumstances Review ”). Commerce made the partial revocation effective as of August 1, 2009 despite all parties to the proceeding having requested an earlier date, January 23, 2008. Id. at 30,102; Compl. ¶ 12. Plaintiff Itochu Building Products (“Itochu” or “IBP”), a U.S. importer of subject merchandise, claims that Commerce unlawfully chose the later date and seeks a remand directing that revocation occur as of the earlier date and that plaintiff's entries be liquidated accordingly. Compl. ¶ 3, Prayer for Relief.

Before the court is Itochu's USCIT Rule 56.2 motion for judgment upon the agency record. Pl.'s Rule 56.2 Mot. for J. upon the Agency R. (Dec. 5, 2011), ECF No. 19; Mem. of Law in Supp. of Pl.'s Rule 56.2 Mot. for J. upon the Agency R. (Dec. 5, 2011), ECF No. 19 (“Pl.'s Mem.”). The court denies relief because plaintiff, although having informed the Department of its position in favor of the earlier effective date prior to the publication of the preliminary results of the changed circumstances review, declined to comment in response to the published notice of the preliminary results and thereby waived its previous objection to the later (August 1, 2009) effective date for the partial revocation of the order.

I. Background

On July 16, 2007, Commerce initiated an investigation of sales at less than fair value of certain steel nails from China. Certain Steel Nails from the People's Republic of China & the United Arab Emirates: Initiation of Antidumping Duty Investigations, 72 Fed.Reg. 38,816 (July 16, 2007). Commerce issued an affirmative preliminary less-than-fair-value determination on January 23, 2008. Certain Steel Nails From the People's Republic of China: Prelim. Determination of Sales at Less Than Fair Value & Partial Affirmative Determination of Critical Circumstances and Postponement of Final Determination, 73 Fed.Reg. 3,928 (Jan. 23, 2008). Commerce required, as of January 23, 2008, that all entries of subject merchandise be accompanied by cash deposits in the amount of estimated antidumping duties and instructed U.S. Customs and Border Protection (“Customs”) to suspend liquidation of subject entries made on and after that date. Id. at 3,942. Commerce issued an affirmative final less-than-fair-value determination on June 16, 2008, Certain Steel Nails from the People's Republic of China: Final Determination of Sales at Less than Fair Value & Partial Affirmative Determination of Critical Circumstances, 73 Fed.Reg. 33,977 (June 16, 2008), and, on August 1, 2008, published the antidumping duty order, Notice of Antidumping Duty Order: Certain Steel Nails from the People's Republic of China, 73 Fed.Reg. 44,961 (Aug. 1, 2008).

On September 22, 2009, Commerce initiated the first periodic administrative review of the antidumping duty order on steel nails from China. Initiation of Antidumping & Countervailing Duty Admin. Reviews & Request for Revocation in Part, 74 Fed.Reg. 48,224, 48,226 (Sept. 22, 2009). The review pertained to entries made from the first date on which liquidation was suspended, January 23, 2008, until July 31, 2009. Id.

On February 11, 2011, a domestic producer filed a request, on behalf of itself and the domestic industry, that Commerce revoke the order as to four types of nails through a changed circumstances review. Certain Steel Nails From the People's Republic of China: Initiation & Prelim. Results of Antidumping Duty Changed Circumstances Review, 76 Fed.Reg. 22,369 (Apr. 21, 2011) (“ Initiation Notice ”). That domestic producer, Mid Continent Nail Corporation (“Mid Continent”), sought, as an effective date for the proposed partial revocation, January 23, 2008, the date of the beginning of the suspension of liquidation of entries of subject merchandise. Id. at 22,371. Itochu requested the same effective date in a February 22, 2011 meeting with Commerce. Id. at 22,370. In a March 1, 2011 submission, another domestic producer, National Nail Corp., also requested the January 23, 2008 effective date. Id. No other parties participated in the changed circumstances review.

Commerce published the final results of the first administrative review of the order (“Final Results”) on March 23, 2011. Certain Steel Nails From the People's Republic of China: Final Results of the First Antidumping Duty Admin. Review, 76 Fed.Reg. 16,379 (Mar. 23, 2011). Commerce then issued amended final results (“Amended Final Results”) on April 26, 2011, responding to allegations of ministerial errors in the March 23 results. Certain Steel Nails From the People's Republic of China: Amended Final Results of the First Antidumping Duty Admin. Review, 76 Fed.Reg. 23,279 (Apr. 26, 2011).

On April 21, 2011, five days prior to the issuance of the amended final results of the administrative review, Commerce issued a combined notice of initiation of a changed circumstances review under Section 751(b) of the Tariff Act, 19 U.S.C. § 1675(b), and notice of the preliminary results of that review. Initiation Notice, 76 Fed.Reg. at 22,369. This notice announced that Commerce preliminarily had determined that the order would be revoked as to the four types of nails identified by Mid Continent. Id. at 22,371. The notice acknowledged that Mid Continent requested revocation of the order as of January 23, 2008 but declined to adopt that date, stating that “the Department does not find this to be consistent with its recent practice.” Id. The Department explained that its practice was “to revoke (in whole or in part) an antidumping duty order so that the effective date of revocation covers entries that have not been subject to a completed administrative review.” Id. Commerce chose as the revocation date August 1, 2009, which it characterized as “the earliest date for which entries of certain steel nails have not been subject to a completed administrative review.” Id.

Commerce provided an opportunity for comments on the April 21, 2011 notice, stating that “[i]nterested parties are invited to comment on these preliminary results. Written comments may be submitted no later than 14 days after the date of publication of these preliminary results.” Id. Commerce then stated that it would “issue the final results of this changed circumstances review ... no later than 270 days after the date on which this review was initiated, or within 45 days if all parties agree to our preliminary results. See19 CFR 351.216(e).” Id.

On May 24, 2011, Commerce issued the final results of the changed circumstances review. Commerce announced that no comments had been received in response to the publication of the combined notice initiating, and announcing preliminary results of, the changed circumstances review, that the order would be revoked as to the four types of nails for which revocation had been requested, and that the partial revocation would take effect as of August 1, 2009. Final Results of Changed Circumstances Review, 76 Fed.Reg. at 30,101–02. In the notice announcing the final results of the review, the Department reiterated the reason for its choice of the August 1, 2009 effective date, stating that “[t]he Department's recent practice has been to select the date after the most recent period for which a review was completed or issued assessment instructions [ sic ] as the effective date.” Id. at 30,102 n. 5.

Challenging the decision to select the August 1, 2009 effective date, plaintiff brought this action by filing a summons on June 22, 2011 and a complaint on July 21, 2011. Summons, ECF No. 1; Compl. Itochu filed its motion for judgment on the agency record on December 5, 2011. On September 13, 2012, the court held oral argument on this motion.

II. Discussion

The court exercises jurisdiction under section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(c) (2006), which grants this court jurisdiction of any civil action commenced under section 516A of the Tariff Act of 1930 (“Tariff Act”), 19 U.S.C. § 1516a(a)(2)(B)(iii) (2006), including the present action challenging the final results of a review based on changed circumstances issued under section 751 of the Tariff Act, 19 U.S.C. § 1675(b). The court must “hold unlawful any determination, finding, or conclusion found ... to be unsupportedby substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i) (2006).

The essence of plaintiff's claims is that the Department acted contrary to law in refusing to adopt the requested effective date of January 23, 2008 and...