Mitsubishi Electronics America, Inc. v. US

• Citation: 18 CIT 167,848 F. Supp. 193
• Decision Date: 10 March 1994
• Docket Number: Slip Op. 94-42. Court No. 91-12-00841.
• Parties: MITSUBISHI ELECTRONICS AMERICA, INC., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

848 F. Supp. 193

18 CIT 167

MITSUBISHI ELECTRONICS AMERICA, INC., Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 94-42. Court No. 91-12-00841.

United States Court of International Trade.

March 10, 1994.

Baker & McKenzie, Washington, DC (Thomas P. Ondeck, Kevin M. O'Brien and William D. Outman, II), for plaintiff.

Frank W. Hunger, Asst. Atty. Gen. of the U.S.; David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, (Marc E. Montalbine); Patrick V. Gallagher, Jr., Atty.-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, for defendant.

OPINION

CARMAN, Judge:

Plaintiff and defendant cross-move for summary judgment pursuant to USCIT R. 56. Plaintiff brought this action to contest a decision by the United States Customs Service (Customs) denying plaintiff's protest under 19 U.S.C. § 1515(a) (1988). Plaintiff's protest challenged the application of the automatic duty assessment provision contained in 19 C.F.R. § 353.53a(d)(1) (1988) to entries that plaintiff had made during the interim period between the publication of the preliminary and final less than fair value determinations in 64K Dynamic Random Access Memory Components (64K DRAMs) From Japan.¹ 50 Fed.Reg. 50,649 (Dep't Comm. 1985) (prelim. determ) (Preliminary Determination); 51 Fed.Reg. 15,943 (Dep't Comm.1986) (final determ.) (Final Determination). The interim period was from December 11, 1985 until April 29, 1986. Pursuant to § 353.53a(d)(1), the Department of Commerce (Commerce) ordered Customs to assess duties on entries made during the interim period using the 94 percent deposit rate in effect during that time. Plaintiff predicates jurisdiction on 28 U.S.C. § 1581(a) (1988) or, in the alternative, 28 U.S.C. § 1581(i)(2) (1988). Defendant cross-moves for summary judgment.

I. BACKGROUND

On July 15, 1985, the Department of Commerce (Commerce) commenced an antidumping duty investigation of imports of 64K dynamic random access memory components (DRAMs) from Japan. Preliminary Determination, 50 Fed.Reg. at 50,649. After the International Trade Commission determined there was a reasonable indication such imports were materially injuring or threatening to materially injure a United States industry, Commerce found several companies were selling or were likely to sell the imports in the United States at less than fair value. Id. Commerce published notice of the Preliminary Determination on December 11, 1985. Id.

Plaintiff was one of the companies investigated in the Preliminary Determination. Id. With respect to plaintiff, Commerce found a weighted-average dumping margin equal to 94 percent. Id. at 50,652. Commerce directed Customs "to suspend liquidation of all entries of 64K DRAMs from Japan that are entered, or withdrawn from warehouse, for consumption, on or after the date of publication of the Preliminary Determination in the Federal Register." Id. (emphasis in original). Commerce also indicated "Customs shall require a cash deposit or the posting of a bond equal to the estimated weighted-average dumping margin...." Id.

On April 29, 1986, Commerce issued the Final Determination. In the Final Determination, Commerce substantially revised the dumping margin it had previously established for plaintiff from 94 percent to 13.43 percent. 51 Fed.Reg. at 15,954. Commerce also directed Customs to continue to suspend liquidation of entries of the subject merchandise "entered, or withdrawn from warehouse, for consumption, on or after December 11, 1985," the date on which Commerce published notice of the Preliminary Determination. Id. at 15,953-54. As in the Preliminary Determination and with respect to plaintiff, Commerce ordered Customs to "require a cash deposit or the posting of a bond equal to" the 13.43 percent dumping margin. Id. at 15,954.

On June 16, 1986, Commerce published an antidumping duty order for the merchandise affected by the Preliminary and Final Determinations. 64K Dynamic Random Access Memory Components (64K DRAMs) From Japan, 51 Fed.Reg. 21,781 (Dep't Comm.1986) (antidumping duty order) (Order). In the Order, Commerce directed Customs to assess "antidumping duties equal to the amount by which the foreign market value of the merchandise subject to the order exceeds the United States price for all entries of such merchandise from Japan." Id. at 21,782. Commerce also noted "these antidumping duties will be assessed on all unliquidated entries of such merchandise entered, or withdrawn from warehouse, for consumption on or after December 11, 1985, the date on which the Department published its `Preliminary Determination' notice in the Federal Register." Id. (emphasis in original).

Approximately one year later, on June 5, 1987, Commerce published a notice of opportunity to request administrative review of the Order. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation, 52 Fed.Reg. 21,338 (Dep't Comm. 1987) (opport. to request admin. review) (Administrative Review Notice). The Administrative Review Notice indicated any interested party under the Order could ask Commerce to conduct an administrative review of the Order for the period between "December 11, 1986 and May 31, 1987."² Id. The Notice allowed interested parties until June 30, 1987 to make their requests for an administrative review. Id. The Notice also indicated the following:

If the Department does not receive by June 30, 1987 a request for review of entries covered by an order or finding listed in this notice and for the period identified above, the Department will instruct the Customs Service to assess antidumping or countervailing duties on those entries at a rate equal to the cash deposit of (or bond for) estimated antidumping or countervailing duties required on those entries at the time of entry, or withdrawal from warehouse, for consumption and to continue to collect the cash deposit previously ordered.

Id. (emphasis added).

Neither plaintiff nor any other interested party requested an administrative review of the Order. Because no party sought an administrative review, Commerce relied on the automatic assessment regulation, 19 C.F.R. § 353.53a(d)(1), and instructed Customs to assess antidumping duties on plaintiff's merchandise at a rate equal to the bond for estimated duties required on the merchandise at the time of entry, or withdrawal from warehouse, for consumption. As the rate applicable to the period between the publication of the preliminary and final determinations was 94 percent, Commerce required Customs to assess plaintiff with 94 percent antidumping duties for entries made during this period. As noted previously, the period involved extended from December 11, 1985 to April 29, 1986.

On October 21, 1988, Customs liquidated the entries covered by the first administrative review period. Pursuant to Commerce's direction and with respect to entries made between December 11, 1985 to April 29, 1986, Customs assessed duties using the 94 percent deposit rate established in the Preliminary Review.

Plaintiff subsequently filed a protest with Customs on January 5, 1989. In its protest, plaintiff challenged Customs' assessment of 94 percent duties and sought interest on the amount paid in excess of the final 13.43 percent margin. On December 10, 1991, Customs denied plaintiff's protest with respect to the duties assessed, but approved the protest as to the interest accruing from monies paid. Thereafter, on February 21, 1992, plaintiff commenced this action in the Court of International Trade (CIT).

II. CONTENTIONS OF THE PARTIES

A. Plaintiff

Plaintiff advances two arguments with respect to the Court's jurisdiction in this case. First, plaintiff contends this Court has jurisdiction under 28 U.S.C. § 1581(a). Pl's Reply Br. at 18, 20-21. Plaintiff argues because it could not have challenged the application of the automatic assessment provision in 19 C.F.R. § 353.53a(d)(1) in an administrative review under § 751 of the Tariff Act of 1930,³ this action involves a protestable matter under 19 U.S.C. § 1514 as to which the Court can exercise jurisdiction under 28 U.S.C. § 1581(a). Id. at 18-19 (citing Nichimen Am., Inc. v. United States, 9 Fed.Cir. (T) 103, 938 F.2d 1286 (1991)). According to plaintiff, as the automatic assessment provision only applies when an interested party does not request an annual review, no party could ever challenge the provision's application in an annual review. Id. Therefore, plaintiff charges, the provision is subject to protest under 19 U.S.C. § 1514(a)(5) under Nichimen. Id.

Alternatively, should the Court determine jurisdiction is improper under § 1581(a), plaintiff asserts jurisdiction exists under § 1581(i)(2). Id. at 20; Transcript of Oral Argument (Tr.) at 13-14. Plaintiff claims the CIT has recognized a presumption favoring judicial review in connection with exercising § 1581(i) jurisdiction over actions such as this in which a party is aggrieved by agency action. Pl's Reply Br. at 20 (citing Krupp Stahl A.G. v. United States, 15 CIT 169, 1991 WL 62139 (1991)). Moreover, plaintiff urges this Court can exercise jurisdiction under § 1581(i) because the CIT has previously recognized it had jurisdiction under that subsection where "`the plaintiffs challenged assessment at the estimated rate and the validity of the automatic assessment regulation.'" Id. at 21 (quoting Krupp Stahl, 15 CIT at 171).

As to the merits of its case, plaintiff contends Commerce's application of 19 C.F.R. § 353.53a(d)(1) violates United States dumping laws and the GATT Antidumping Code. Pl's Br. at 9. Plaintiff asserts numerous GATT provisions prohibit dumping duties from exceeding final dumping margins and require Commerce to recalculate provisional duties when the duties established in a final determination are lower than the provisional duties. Id. at 7-10 (citing GATT arts. 2, 8, 10, 11). Plaintiff also maintains the application of § 353.53a(d)(1)...