J.D. Irving, Ltd. v. United States

• Decision Date: 02 May 2022
• Docket Number: Slip Op. 22-40,Court No. 21-00641
• Citation: 570 F.Supp.3d 1349
• Parties: J.D. IRVING, LIMITED, Plaintiff, v. UNITED STATES and U.S. Department of Commerce, Defendants.
• Court: U.S. Court of International Trade

570 F.Supp.3d 1349

J.D. IRVING, LIMITED, Plaintiff,

v.UNITED STATES and U.S. Department of Commerce, Defendants.

Slip Op. 22-40

Court No. 21-00641

United States Court of International Trade.

May 2, 2022

Jay C. Campbell, White and Case LLP, of Washington, D.C., argued for plaintiff. With him on the brief was Walter Spak.

Kelly A. Krystyniak, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for defendants. With her on the brief were Brian M. Boynton, Acting Assistant Attorney General, Patricia M. McCarthy, Director, and Claudia Burke, Assistant Director. Of counsel on the brief was Paul K. Keith, Senior Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.

OPINION

Reif, Judge:

Plaintiff, J.D. Irving, Limited, moves for the expedited briefing and consideration of its action against defendants, the United States and the U.S. Department of Commerce ("Commerce"), pursuant to U.S. Court of International Trade ("USCIT") Rule 3(g)(5). Pl.’s Mot. for Expedited Br. and Consideration ("Pl. Br."), ECF No. 5. In this action, plaintiff contests the antidumping duty ("AD") cash deposit instructions that Commerce issued to U.S. Customs and Border Protection ("Customs") on December 9, 2021. Compl. at 1, ECF No. 4; Cash Deposit Instructions for Certain Softwood Lumber from Canada, Message No. 1343410 (A-122-857) (Dec. 9, 2021) (Compl. Attach. 1) ("Commerce's Cash Deposit Instructions"); Certain Softwood Lumber Products from Canada: Antidumping Duty Order and Partial Amended Final Determination ("Softwood Lumber from Canada Order"), 83 Fed. Reg. 350 (Dep't of Commerce Jan. 3, 2018) (antidumping duty order). For the reasons discussed below, the court denies plaintiff's motion.

BACKGROUND

Plaintiff is a Canadian producer and exporter of merchandise subject to the Softwood Lumber from Canada Order, as well as the importer of record. Compl. at 5. Commerce published the Softwood Lumber from Canada Order on January 3, 2018.¹ See Softwood Lumber from Canada Order, 83 Fed. Reg. 350.

Commerce initiated a first administrative review ("AR 1") of the Softwood Lumber from Canada Order on April 1, 2019. Certain Softwood Lumber Products from Canada: Initiation of Antidumping and Countervailing Duty Administrative Reviews , 84 Fed. Reg. 12,209, 12,209 -10 (Dep't of Commerce Apr. 1, 2019) (initiation notice). AR 1 covered entries of subject merchandise made between June 30, 2017, and December 31, 2018. Certain Softwood Lumber Products from Canada: Final Results of Antidumping Duty Administrative Review; 2017-2018 ("AR 1 Final Results"), 85 Fed. Reg. 76,519, 76,519 -20 (Dep't of Commerce Nov. 30, 2020) (final results). Plaintiff was not selected as a mandatory respondent in this review; accordingly, upon the publication of the AR 1 Final Results on November 30, 2020, Commerce assigned to plaintiff the non-selected companies’ assessment rate of 1.57%. See id. at 76,520 -21. Further, pursuant to section 751(a)(2)(C) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1675(a)(2)(C) (2018),² Commerce instructed Customs to collect at this 1.57% rate cash deposits on plaintiff's entries made on or after the publication date of the AR 1 Final Results. See id. at 76,520.

Commerce initiated a second administrative review ("AR 2") of the Softwood Lumber from Canada Order on March 10, 2020. Initiation of Antidumping and Countervailing Duty Administrative Reviews , 85 Fed. Reg. 13,860, 13,862 (Dep't of Commerce Mar. 10, 2020) (initiation notice). AR 2 covered entries of subject merchandise made between January 1, 2019, and December 31, 2019. Certain Softwood Lumber Products from Canada: Final Results of Antidumping Duty Administrative Review; 2019 ("AR 2 Final Results"), 86 Fed. Reg. 68,471, 68,471 -73 (Dep't of Commerce Dec. 2, 2021) (final results). Plaintiff was not selected as a mandatory respondent in this review. Upon the publication of the AR 2 Final Results on December 2, 2021, Commerce assigned to plaintiff a recalculated non-selected companies’ assessment rate of 11.59%. See id. at 68,472 -73. In addition, Commerce instructed Customs to collect at this 11.59% rate cash deposits on plaintiff's entries made on or after the publication date of the AR 2 Final Results. See id. at 68,473 ; Commerce's Cash Deposit Instructions.

Following Commerce's initiation of an AR 2 on March 10, 2020, and prior to Commerce's publication of the AR 2 Final Results on December 2, 2021, Commerce initiated a third administrative review ("AR 3") of the Softwood Lumber from Canada Order. Initiation of Antidumping and Countervailing Duty Administrative Reviews , 86 Fed. Reg. 12,599, 12,601 (Dep't of Commerce Mar. 4, 2021) (initiation notice). Commerce initiated AR 3 — which covers entries of subject merchandise made between January 1, 2020, and December 31, 2020 — on March 4, 2021. Id. In contrast with AR 1 and AR 2, no parties requested that Commerce review plaintiff's entries that would have been subject to an AR 3. See id. at 12,603 ; Compl. at 10. Accordingly, Commerce instructed Customs to liquidate plaintiff's entries that would have been subject to an AR 3 at the 1.57% rate then in effect, which had been assigned to plaintiff in the AR 1 Final Results. See Automatic Liquidation Instructions for Certain Softwood Lumber Products for the Period 01/01/2020 Through 12/31/2020, Message No. 1106404 (A-122-857) (Apr. 16, 2021) (Compl. Attach. 7) ("Automatic Liquidation Instructions"); AR 1 Final Results, 85 Fed. Reg. at 76,520 ; 19 C.F.R. § 351.212(c)(1)(i). In addition, Commerce instructed Customs to continue to collect cash deposits on plaintiff's entries at this 1.57% rate. See 19 C.F.R. § 351.212(c)(1)(ii) ("If [Commerce] does not receive a timely request for an administrative review ..., [Commerce] ... will instruct [Customs] to ... continue to collect the cash deposits previously ordered."); Automatic Liquidation Instructions; Cash Deposit Instructions for Certain Softwood Lumber Product from Canada, Message No. 0343402 (A-122-857) (Dec. 8, 2020).

On January 31, 2022, plaintiff requested that Commerce review plaintiff's entries subject to a fourth administrative review ("AR 4") of the Softwood Lumber from Canada Order. See Certain Softwood Lumber Products from Canada: Request for Administrative Review for J.D. Irving, Limited, Pub. Doc. No. 4207148-01 (A-122-857) (Jan. 31, 2022). Commerce initiated AR 4 — which covers entries of subject merchandise made between January 1, 2021, and December 31, 2021 — on March 9, 2022. Initiation of Antidumping and Countervailing Duty Administrative Reviews ("AR 4 Initiation Notice"), 87 Fed. Reg. 13,252, 13,252 -54 (Dep't of Commerce Mar. 9, 2022) (initiation notice). Based on the publication date of Commerce's notice of initiation, plaintiff has a deadline of June 7, 2022, to withdraw its request for an AR 4. See 19 C.F.R. § 351.213(d)(1) ("[Commerce] will rescind an administrative review ... if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review." (emphasis supplied)).

In this action, plaintiff contests the instructions that Commerce issued to Customs on December 9, 2021, to collect cash deposits on plaintiff's entries at the 11.59% rate assigned in the AR 2 Final Results. See Compl. at 1; Commerce's Cash Deposit Instructions. Plaintiff contends that "Commerce acted arbitrarily and in a manner inconsistent with Congress’[ ] intent when it replaced" the 1.57% cash deposit rate assigned to plaintiff following its decision not to request an AR 3, with the 11.59% rate assigned to plaintiff in connection with the earlier AR 2. Compl. at 15. According to plaintiff, Commerce's instructions to replace the 1.57% rate with the 11.59% rate "calculated for an earlier period ... inject[ ] uncertainty into the review-request process" and violate 19 U.S.C. § 1675(a) as well as Commerce's regulations. Id. at 11-12. Accordingly, plaintiff requests that the court: (1) declare that Commerce's Cash Deposit Instructions with respect to plaintiff's entries made on or after December 2, 2021, are unlawful; and (2) order Commerce to instruct Customs to reinstate the 1.57% cash deposit rate and to refund any excess cash deposits provided for entries made on or after December 2, 2021. See id. at 17.

Plaintiff filed its complaint on December 30, 2021. Id. On March 4, 2022, defendants filed a motion to dismiss the complaint, contending that: (1) the court does not possess subject matter jurisdiction to hear plaintiff's action; (2) plaintiff does not have standing to bring its claim; and (3) plaintiff fails to state a claim upon which relief can be granted pursuant to USCIT Rule 12(b)(6). Def.’s Mot. to Dismiss ("Def. Mot. to Dismiss") at 1-2, 14, ECF No. 16. In response, plaintiff argues that: (1) the court has subject matter jurisdiction to hear plaintiff's action pursuant to 28 U.S.C. § 1581(i) ;³ (2) plaintiff has standing to bring its claim; and (3) plaintiff states a claim upon which relief can be granted. Pl.’s Resp. Opp'n to Def.’s Mot. to Dismiss at 1-2, 9, ECF No. 17.

STANDARD OF REVIEW

USCIT Rule 3(g)(5) permits the Court to expedite any "action that the court determines, based on motion and for good cause shown, warrants expedited treatment." The Court has concluded that "good cause" exists to expedite the briefing and consideration of an action:

[1] in a case in which failure to expedite would result in mootness or deprive the relief requested of much of its value, [2] in a case in which failure to expedite would result in extraordinary hardship to a litigant, or [3] actions where the public interest in enforcement of the statute is particularly strong.

Ontario Forest Indus. Ass'n v. United States , 30 C.I.T. 1117, 1127, 444 F. Supp. 2d 1309, 1319 (2006) (citing H.R. REP. NO. 98-985, at 6 (1984), as reprinted in 1984 U.S.C.C.A.N....