Matsushita Elec. Indus. Co., Ltd. v. US

• Decision Date: 25 May 1988
• Docket Number: Court No. 86-07-00902.
• Citation: 688 F. Supp. 617,12 CIT 455
• Parties: MATSUSHITA ELECTRIC INDUSTRIAL CO., LTD.; Matsushita Electric Corporation of America; Panasonic Hawaii, Inc.; Matsushita Electric of Puerto Rico, Inc.; Victor Company of Japan, Ltd.; US JVC Corp., Plaintiffs, v. The UNITED STATES; the Department of Commerce; Malcolm T. Baldrige, Secretary of Commerce; Bruce Smart, Under Secretary of Commerce for International Trade; Paul Freedenberg, Assistant Secretary of Commerce for Trade Administration; Gilbert B. Kaplan, Deputy Assistant Secretary of Commerce for Import Administration, Defendants.
• Court: U.S. Court of International Trade

688 F. Supp. 617

12 CIT 455

MATSUSHITA ELECTRIC INDUSTRIAL CO., LTD.; Matsushita Electric Corporation of America; Panasonic Hawaii, Inc.; Matsushita Electric of Puerto Rico, Inc.; Victor Company of Japan, Ltd.; US JVC Corp., Plaintiffs, v. The UNITED STATES; the Department of Commerce; Malcolm T. Baldrige, Secretary of Commerce; Bruce Smart, Under Secretary of Commerce for International Trade; Paul Freedenberg, Assistant Secretary of Commerce for Trade Administration; Gilbert B. Kaplan, Deputy Assistant Secretary of Commerce for Import Administration, Defendants.

Court No. 86-07-00902.

United States Court of International Trade.

May 25, 1988.

Weil, Gotshal & Manges, A. Paul Victor, Stuart M. Rosen, Philip A. Byler, Charles H. Bayar, and Debra J. Pearlstein, New York City, for plaintiffs.

John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., Dept. of Justice (Jeanne E. Davidson); of counsel: John D. McInerney, Attorney-Advisor, Office of the Chief Counsel for Import Admin., Dept. of Commerce, Washington, D.C., for defendants.

MEMORANDUM OPINION AND ORDER

TSOUCALAS, Judge:

The long and tortuous history of this case, which involves events occurring during the past 8-15 years, is extremely troublesome. The multitude of motions and correspondence submitted by the parties is alarming, yet, in essence they all focus on the authority Commerce possesses, and the process Commerce should employ, in revoking an antidumping duty order. Plaintiffs challenge delays by Commerce in completing annual administrative reviews, delays in issuing a final decision on revocation, and the decision by Commerce to initiate another administrative review. The thrust of these issues shall be decided in only addressing defendants' motion to dismiss for lack of jurisdiction or failure to state a claim upon which relief may be granted and motion for summary judgment, and plaintiffs' motion for partial summary judgment. In order to properly place in perspective the nature of these motions, it is essential to outline the background of this action.

BACKGROUND

Plaintiffs, manufacturers and/or importers of televisions from Japan, are subject to an antidumping finding, T.D. 71-76, since March 1971, covering television receiving sets, monochrome and color, from Japan. On April 28, 1980, plaintiffs entered into a settlement agreement with the United States, whereby plaintiffs paid approximately $12 million to settle their liability for dumping duties assessed on entries of televisions imported by plaintiffs on or before March 31, 1979. In addition to foregoing these claims, the United States agreed to use its best efforts to ensure the appraisement and liquidation of plaintiffs' entries, to revoke the antidumping finding to which plaintiffs were subject as soon as the facts and circumstances warranted, and to use the "traditional methodology" when conducting administrative reviews of this order.

Thereafter, responsibility for administration of the dumping laws was transferred to Commerce. Additionally, the Trade Agreements Act of 1979,¹ became effective immediately prior to the date of the settlement agreement. The instant action arises out of the administration of the annual review procedures established by § 751 of that Act, 19 U.S.C. § 1675 (1982 and Supp. III 1985),² which provides in pertinent part:

(a) Periodic review of amount of duty.—

(1) At least once during each 12-month period beginning on the anniversary of the date of publication of ... an antidumping duty order under this subtitle or a finding under the Antidumping Act, 1921, ... the administering authority, after publication of notice of such review in the Federal Register, shall—

* * * * * *

(B) review, and determine ... the amount of any antidumping duty....

* * * * * *

(c) Revocation of ... antidumping duty order.— The administering authority may revoke, in whole or in part, ... an antidumping duty order, ... after review under this section.

The regulations implementing § 751 outline the procedures for revocation of a dumping order based on the results of these administrative reviews. Upon application, if there have been no sales at less than fair value ("LTFV") for at least two years following the antidumping finding or order, the Secretary (Commerce) may act to revoke the antidumping finding or order. 19 C.F.R. § 353.54(b). If the § 751 review results indicate that revocation may be appropriate, the Secretary will publish a notice of tentative determination to revoke if the parties subject to the revocation provide in writing for reinstatement of the order if circumstances indicate the resumption of dumping. 19 C.F.R. § 353.54(e). Further, a final decision on revocation shall be made as soon as possible after the preliminary determination to revoke is published. 19 C.F.R. § 353.54(f). However, the decision on whether final revocation may be warranted cannot be issued unless there are no LTFV sales up to the date the notice of tentative revocation was published. Id. Final revocation, if granted, will be effective for all unliquidated entries as of that tentative revocation date. The Secretary must be satisfied that there are no longer, and there is no likelihood of resumption of, sales at LTFV. 19 C.F.R. § 353.54(a).

Thus, pursuant to § 751, Commerce commenced annual reviews covering plaintiffs' entries for periods subsequent to the date of the settlement agreement. In the first round annual review for the period April 1, 1979-March 31, 1980, Commerce determined that plaintiffs' dumping margins were zero or de minimis. 46 Fed.Reg. 30,163 (June 5, 1981). In accordance with the regulations, plaintiffs applied for revocation of the dumping order. Commerce also found that during the second round review for the period April 1, 1980-March 31, 1981, the dumping margins for plaintiffs were zero or de minimis. 48 Fed. Reg. 37,506 (August 18, 1983) (preliminary). When these results were published, Commerce included a notice of tentative determination to revoke the dumping finding as to plaintiffs. Id. at 37,508. In December 1983, a hearing was held on the issue of revocation and interested parties were given until February 1984 to submit briefs on the issue. The final results of the second review were published on June 10, 1985, which concluded there was no dumping by plaintiffs. 50 Fed. Reg. 24,278. In accordance with the regulations, before a final decision on revocation could be issued, it was necessary to conduct annual reviews for the 3rd, 4th, and partial 5th rounds, (April 1, 1981-August 18, 1983). See 19 C.F.R. § 353.54(f). This is known as the "gap period"—the time between the last review conducted giving rise to the tentative decision to revoke, and the date that tentative determination was published.

These gap period reviews were all commenced, but without completing any of them, and without rendering a final decision on revocation of the dumping order, Commerce initiated reviews for the full 5th round (April 1, 1983-March 31, 1984), 6th round (April 1, 1984-February 28, 1985), and 7th round (March 1, 1985-February 28, 1986). 51 Fed.Reg. 24,883 (July 9, 1986) and 51 Fed.Reg. 13,273 (April 18, 1986), respectively.

On July 18, 1986, plaintiffs brought this action to compel Commerce to: complete the 3rd, 4th, and partial 5th round reviews, issue a final decision on revocation, employ a certain methodology in conducting these reviews; and sought to enjoin Commerce from conducting the full 5th, 6th, and 7th reviews. Concurrently, plaintiffs sought a preliminary injunction. On August 12, 1986, another judge of this court granted that application, which prevented Commerce from conducting any further reviews until Commerce issued a final decision on revocation based on reviews up until August 18, 1983, the date of tentative revocation. The order further prohibited Commerce from deviating from the "traditional methodology" in conducting these reviews. Matsushita Elec. Indus. Co. v. United States, 10 CIT ___, 645 F.Supp. 939 (1986). However, on July 2, 1987, the Court of Appeals for the Federal Circuit (CAFC) reversed the order, concluding that plaintiffs' participation in the subsequent reviews did not constitute irreparable injury. Matsushita Elec. Indus. Co. v. United States, 823 F.2d 505 (Fed.Cir.1987). The court stated that "unless and until Commerce revokes the dumping finding, Matsushita is required to complete the questionnaires to facilitate Commerce's administrative reviews." Id. at 509.

After the mandate by the CAFC to this effect, Commerce recently resumed the review process and announced its intention to complete the reviews for the gap period, abandon the full 5th, 6th, and 7th reviews, and conduct only one update review for the eighth round (March 1, 1986-February 28, 1987), because the data up until the tentative revocation date, was then over four years old, and the domestic industry requested an additional review.

As to whether Commerce should revoke the dumping finding or employ a certain methodology in completing its reviews, defendants moved to dismiss the action for lack of jurisdiction and for failure to state a claim for which relief may be granted, alleging that there has been no final agency action which represents a justiciable controversy ripe for judicial review. Defendants also moved for summary judgment on plaintiffs' request for the imposition of a scheduling order for the completion of the outstanding reviews and further claim that as a matter of law Commerce may conduct post-tentative revocation date reviews notwithstanding that previous reviews have not been completed and a decision on revocation has not been issued.

In opposition thereto, and in support of its motion for partial summary judgment, plaintiffs contend that Commerce has unlawfully withheld its final decision on revocation and has acted in disregard of the statutory and regulatory framework. Their argument, in substance,...