Mukand Intern., Ltd. v. U.S.

• Decision Date: 22 December 2005
• Docket Number: Slip Op. 05-164. Court No. 05-00034.
• Parties: MUKAND INTERNATIONAL, LTD., Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. Court of International Trade

Page 1312

412 F.Supp.2d 1312

MUKAND INTERNATIONAL, LTD., Plaintiff, v. UNITED STATES of America, Defendant.

Slip Op. 05-164. Court No. 05-00034.

United States Court of International Trade.

December 22, 2005.

Miller & Chevalier, Washington, DC (Peter J. Koenig) for the plaintiff.

Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, (Stephen C. Tosini), Matthew D. Walden, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for the defendant, of counsel.

OPINION

RESTANI, Chief Judge.

Mukand International, Ltd. ("Mukand") brings this action to request a writ of mandamus to compel the Bureau of Customs and Border Protection ("Customs") to refund all antidumping duties collected on Mukand's entries of stainless steel bar ("SSB") produced in the United Arab Emirates ("UAE") using stainless steel wire rod ("SSWR") from India. Mukand asserts that the improperly liquidated entries were entered into the United States between June 5, 2000, and January 8, 2002. Defendant seeks to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(5).

BACKGROUND

On February 21, 1995, the Department of Commerce ("Commerce") issued an antidumping order upon SSB from India. Antidumping Duty Orders: Stainless Steel Bar from Brazil, India and Japan, 60 Fed.Reg. 9661 (Dep't Commerce Feb. 21, 1995) [hereinafter SSB Order]. In the SSB Order, Commerce imposed an antidumping duty rate of 21.02% on Mukand's entries of SSB from India using adverse facts available. Id. Beginning in June of 2000, Mukand began importing SSB produced in the UAE using SSWR from India. On March 22, 2005, Commerce clarified that entries of SSB produced in the UAE using SSWR from India are not subject to the SSB Order, but not before Customs liquidated Mukand's entries of SSB from UAE during the period of review from February 1, 2000 through January 31, 2001 ("POR 2000-2001") and the period of review from February 1, 2001 through January 31, 2002 ("POR 2001-2002").

On February 14, 2001, Commerce notified interested parties of the opportunity to request an administrative review of the SSB Order for the POR 2000-2001. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Admin. Review, 66 Fed.Reg. 10,269 (Dep't Commerce Feb. 14, 2001). On March 22, 2001, Commerce initiated an antidumping duty administrative review, but no interested party requested a review related to Mukand's imports of SSB. Initiation of Antidumping & Countervailing Duty Admin. Reviews & Requests for Revocations in Part, 66 Fed. Reg. 16,037 (Dep't Commerce Mar. 22, 2001). Accordingly, on May 18, 2002, Commerce issued instructions to Customs to liquidate Mukand's entries of SSB for the POR 2000-2001.¹ Def's Mot. to Dismiss 3. On July 11, 2002, Commerce published the final results of its administrative review on SSB from India for the POR 2000-2001. Stainless Steel Bar from India; Final Results of Antidumping Admin. Review, 67 Fed.Reg. 45,956 (Dep't Commerce July 11, 2002) [hereinafter 2000-2001 Admin. Review Final Results].

On February 1, 2002, Commerce notified interested parties of the opportunity to request an administrative review of the SSB Order for the POR 2001-2002. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Admin. Review, 67 Fed.Reg. 4945 (Dep't Commerce Feb. 1, 2002). On March 7, 2002, Commerce initiated an antidumping duty administrative review at the request of interested parties, including Mukand. Preliminary Results of Antidumping Duty Admin. Review & Partial Rescission of Admin. Review, 67 Fed.Reg. 10,377 (Dep't Commerce Mar. 7, 2002). Commerce issued antidumping duty questionnaires to the interested parties on May 22, 2002, but Mukand submitted an untimely response, and Commerce refused to consider it.²

On September 10, 2002, Mukand submitted a scope ruling request to Commerce seeking clarification as to whether its entries of SSB produced in the UAE using SSWR from India were subject to the SSB Order. On October 28, 2002, Commerce acknowledged receipt of the scope ruling request, but determined that the request was incomplete and required Mukand to provide additional information.³ Following subsequent Mukand submissions and Commerce rejections, Mukand filed its fourth and final scope ruling request on May 14, 2003, which Commerce accepted as a completed request.⁴

Simultaneously, Commerce conducted its administrative review for the POR 2001-2002. On March, 7, 2003, Commerce imposed a preliminary antidumping duty rate of 21.02% on Mukand's entries of SSB for the POR 2001-2002, using adverse facts available. Notice of Preliminary Results of Antidumping Duty Admin. Review: Stainless Steel Bar from India, 68 Fed.Reg. 11,058 (Dep't Commerce March 7, 2003). Mukand submitted a brief and rebuttal challenging Commerce's determination on the ground that data from Customs only pertained to SSB from the UAE produced by Mukand's affiliate, United Bright Steels, Ltd., not SSB produced by Mukand in India. On August 11, 2003, Commerce published the final results of its administrative review on SSB from India for the POR 2001-2002. Stainless Steel Bar from India; Final Results of Antidumping Admin. Review, 68 Fed.Reg. 47,543 (Dep't Commerce Aug. 11, 2003) [hereinafter 2001-2002 Admin. Review Final Results]. Commerce affirmed its use of the adverse facts available rate for Mukand based on its untimely response and did not address Mukand's scope argument. Id. On October 17, 2003, Commerce directed Customs to lift suspension and liquidate these entries. On November 14, 2003, Customs liquidated Mukand's entries of SSB. Mukand filed protests against Customs' liquidation of the entries, and Customs denied the protests.

On January 19, 2005, Mukand filed a complaint against Commerce seeking a writ of mandamus to compel Commerce to issue a scope determination, suspend any further liquidation, and refund all antidumping duties on Mukand's imports of SSB from UAE. Mukand also supplemented its outstanding application for a scope ruling by letter dated February 22, 2005. On March 25, 2005, Commerce formally initiated a scope inquiry and issued a preliminary scope ruling determining that Mukand's entries of SSB from UAE were outside the scope of the antidumping order. Initiation of Scope Inquiry & Preliminary Scope Ruling Memorandum (Dep't Commerce Mar. 25, 2005). On May 23, 2005, Commerce issued a final scope ruling determining that SSB produced in the UAE using SSWR from India is not subject to the SSB Order. Final Scope Ruling, Antidumping Duty Orders on Stainless Steel Bar from India & Stainless Steel Wire Rod from India, (Dep't Commerce May 23, 2005) [hereinafter Final Scope Ruling].

DISCUSSION

At present, Mukand seeks a refund of antidumping duties paid on imports of SSB from UAE that Commerce determined to be outside the scope of the SSB Order.⁵ Mukand's complaint asserts that Commerce failed to follow its scope determination procedures, which caused the improper liquidation of Mukand's entries. Mukand argues that Commerce accepted its request for a scope ruling on May 13, 2003, after which it was required, "[w]ithin 45 days of the date of receipt of an application for a scope ruling," to issue a final ruling or initiate a scope inquiry. 19 C.F.R. § 351.225(c)(2). If Commerce had initiated an inquiry, Mukand argues that it would have been required to instruct Customs to continue the then ongoing suspension of liquidation for its entries pending a scope ruling. See 19 C.F.R § 351.225(l)(1) (When Commerce "conducts a scope inquiry . . . and the product in question is already subject to suspension of liquidation, that suspension of liquidation will be continued, pending a preliminary or a final scope ruling."). Commerce did not, however, formally initiate a scope inquiry until March 25, 2005.⁶ Mukand argues that Commerce erred by failing to initiate the scope inquiry within 45 days, and erred by failing to continue suspension of liquidation of Mukand's entries.

As an initial matter, the Court considers whether it has subject matter jurisdiction to review this case. Mukand asserts that jurisdiction to seek reliquidation is appropriate under 28 U.S.C. § 1581(i) (2000). The government contends that § 1581(i) jurisdiction is inappropriate because Mukand could have brought this action under 28 U.S.C. § 1581(a). Moreover, the government argues that this court lacks jurisdiction because the liquidation of Mukand's entries is final under 19 U.S.C. § 1514(a) (2000).

I. Mukand could not have initiated this action under 28 U.S.C. 1581(a).

Under § 1581(a), the Court of International Trade has "exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930 [19 U.S.C. § 1515]." 28 U.S.C. § 1581(a). A civil action under § 1515 may commence after a party protests a Customs liquidation decision, and receives an allowance or denial of the protest pursuant to 19 U.S.C. § 1514. At the time of Customs' liquidation decision, the following decisions were subject to protest:

(1) the appraised value of merchandise;

(2) the classification and rate and amount of duties chargeable;

(3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury;

(4) the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under section 1337 of this title;

(5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof (6) the refusal to pay a claim for drawback; or

(7) the...