North Dakota Wheat Com'n. v. U.S.

• Decision Date: 29 July 2004
• Docket Number: SLIP OP. 04-93.,Court No. 03-00838.
• Parties: NORTH DAKOTA WHEAT COMMISSION, U.S. Durum Growers Association, and Durum Growers Trade Action Committee, Plaintiffs, v. UNITED STATES, Defendant, and Canadian Wheat Board, Defendant-Intervenor.
• Court: U.S. Court of International Trade

342 F.Supp.2d 1319

NORTH DAKOTA WHEAT COMMISSION, U.S. Durum Growers Association, and Durum Growers Trade Action Committee, Plaintiffs, v. UNITED STATES, Defendant, and Canadian Wheat Board, Defendant-Intervenor.

SLIP OP. 04-93.

Court No. 03-00838.

United States Court of International Trade.

July 29, 2004.

Robins, Kaplan, Miller & Ciresi, LLP (Charles A. Hunnicutt), for Plaintiff.

James M. Lyons, Acting General Counsel, Office of General Counsel, United States International Trade Commission, (Michael Diehl), Attorney-Advisor, for Defendant.

Steptoe & Johnson LLP, Richard O. Cunningham, Edward J. Krauland, (Matthew S. Yeo), Tina Potuto Kimble, for Defendant-Intervenor.

OPINION

BARZILAY, Judge.

In this case, the court is called upon to decide whether plaintiffs, the North Dakota Wheat Commission, U.S. Durum Growers Association, and Durum Growers Trade Action Committee ("plaintiffs") have failed to establish jurisdiction in this court as defendant, the United States International Trade Commission ("Commission"), argues in its motion to dismiss. Specifically, the government argues that the North Dakota Wheat Commission commenced the present action¹ during a time expressly prohibited by section 516a(a)(5) of the Tariff Act of 1930 (19 U.S.C. § 1516a(a)(5)).

I. Background

On September 13, 2002, the North Dakota Wheat Commission and the U.S. Durum Growers Association filed a petition with the Department of Commerce ("Commerce") and the Commission alleging that a domestic industry was being materially injured and threatened with material injury by reason of imports of durum wheat from Canada that were being subsidized and sold at less than fair value. In October, 2002, Commerce initiated both countervailing duty and antidumping investigations of certain hard red spring and durum wheat from Canada. Commerce initiated four specific and separate investigations: one countervailing duty and antidumping investigation for each type of wheat. In November 2002, the Commission made a preliminary determination that there was a reasonable indication that an industry in the United States was materially injured by reason of subject imports of durum wheat from Canada. Durum and Hard Red Spring Wheat from Canada, Inv. Nos. 701-TA-430A and 430B and 731-TA-1019A and 1019B (Preliminary), USITC Pub. 3563 (Dec.2002). Commerce subsequently made a final affirmative determination in all four investigations. 68 Fed.Reg. 52,747 (Sept. 5, 2003) (final CVD determination), 68 Fed.Reg. 52741 (Sept. 5, 2003) (final less than fair value determination). On October 23, 2003, the Commission issued its final determination, finding that the domestic industry was being materially injured by subsidized imports from Canada of hard red spring wheat, but was not being materially injured or threatened with material injury by subsidized imports of durum wheat from Canada. Durum and Hard Red Spring Wheat from Canada, 68 Fed.Reg. 6,070 (Oct. 23, 2003); Durum and Hard Red Spring Wheat from Canada, Inv. Nos. 701-TA-430A and 430B and 731-TA-1019A and 1019B (Final), USITC Pub. 3639 (Oct.2003). Twenty-nine days later, on November 21, 2003, plaintiffs filed a summons with the court, challenging the Commission's determination and commencing the instant litigation.

Pursuant to USCIT R. 12(b)(1), defendant moves to dismiss for lack of subject matter jurisdiction, arguing that plaintiffs commenced the present action during a time expressly prohibited by 19 U.S.C. § 1516a(a)(5).² Specifically, defendant argues that section 1516a(a)(5) creates a 30 day "time window" within which a party must file a summons seeking judicial review of a Commission determination involving imports from a free trade area country. Defendant further contends that this "window" opens on the 31st day after publication of the Commission's order in the Federal Register and closes on the 60th day after publication. Thus, commencement of judicial review is prohibited up to the 31st day. Because the plaintiffs commenced this action on November 21, 2003, defendant argues, it was commenced before the time window for doing so began and therefore within the prohibited period.

Plaintiffs respond by arguing that the court should be guided in its interpretation of section 1516a(a)(5) by this Court's recent decision in Bhullar v. United States, 27 CIT ___, 259 F.Supp.2d 1332 (2003), aff'd 93 Fed.Appx. 218, 2004 U.S.App. LEXIS 3995 (March 2, 2004) (UNPUBLISHED).³ Plaintiffs argue that according to this Court's decision in Bhullar, a summons must be filed within 31 days after notice is published in the Federal Register. Plaintiffs further argue that the Commission, in Bhullar, argued that a plaintiff was required to commence an action no later than 31 days after notice of the antidumping or countervailing duty determination is published in the Federal Register.⁴ Plaintiffs contend that this Court granted the Commission "deference" when it ruled that plaintiffs are required to timely commence an action under section 1516a(a)(5) within 31 days after publication of the notice in the Federal Register, and that they followed the Commission's "clearly stated interpretation of the statute" by filing within that period.

Plaintiffs argue in the alternative that according to the language of the statute, because neither the United States nor Canada had standing to request binational panel review of the Commission's negative determination, 19 U.S.C. § 1516a(g)⁵ does not apply and therefore, section 1516a(a)(5)(A) is inapplicable. Instead, plaintiffs argue, section 1516a(a)(2),⁶ which requires commencement of an action within 30 days after publication in the Federal Register, is controlling.

Finally, plaintiffs argue that should the court find that section 1516a(a)(5)(A) applies and prohibits commencement of an action during the first 30 days after publication in the Federal Register, the court should apply the principle of equitable tolling in this instance.

II. Analysis

A. Statute

Section 1516a(a) of Title 19 provides for judicial review of Commission determinations in countervailing duty and antidumping duty proceedings. 19 U.S.C. § 1516a(a). For cases involving merchandise from free trade area countries, as in this case, subsection (5) prescribes a time limit for commencing an action in the Court of International Trade.

(5) Time limits in cases involving merchandise from free trade area countries. Notwithstanding any other provision of this subsection, in the case of a determination to which the provisions of subsection (g) apply, an action under this subsection may not be commenced, and the time limits for commencing an action under this subsection shall not begin to run, until the day specified in whichever of the following subparagraphs applies:...

(A) For a determination described in paragraph (1)(B) or clause (i), (ii) [negative final determinations by the Commission] or (iii) of paragraph (2)(B), the 31st day after the date on which notice of the determination is published in the Federal Register.

19 U.S.C. § 1516a(a)(5)(A). As plaintiffs point out, section 1516a(a) is predicated on the applicability of subsection (g). Subsection (g) applies to the review of countervailing duty and antidumping duty determinations involving free trade area merchandise, and provides for exclusive review of determinations by binational panels — if binational panel review is requested pursuant to article 1904 of the North American Free Trade Agreement ("NAFTA"), with certain exceptions not relevant here. 19 U.S.C. § 1516a(g). Subsection (g) provides for binational panel review where it has been requested, but does not, as plaintiffs assert, require that it be requested in order for subsection (a)(5) to apply. Moreover, discussing this same provision in the U.S.-Canada Free Trade Agreement — NAFTA's predecessor — the Senate report on the implementing legislation noted that

the Agreement provides that ... judicial review may not be commenced until the time for requesting a panel under the Agreement has expired. To preclude this possibility, section 401(a) amends section 516a(a) by adding a new paragraph (5) that prohibits the commencing of an action under section 1516a(a) until the 31st day after publication of the appropriate notice in the Federal Register ... Thus, the normal 30-day period for filing a summons (and 30 days thereafter, a complaint) would begin to run on such 31st day.

S. REP. NO. 100-509, at 33-34 (1988), reprinted in 1988 U.S.C.C.A.N. 2395, 2428 (emphasis added). Thus, the statute lays out a series of steps that may be taken with respect to review of a Commission determination. Under this scheme, commencement of an action in the Court of International Trade is precluded until the time to request a binational panel has expired. Specifically, NAFTA parties agreed to replace judicial review of certain determinations with binational panel review where binational panel review has been requested. A request for binational panel review must be made within 30 days following the date of publication of the final determination which, in the United States, refers to publication of the Commission's determination in the Federal Register. See NAFTA Art.1904:4; 19 U.S.C. § 1516a(g)(2). Thus, the United States agreed to "amend its statutes or regulations to ensure that ... domestic procedures for judicial review of a final determination may not be commenced until the time for requesting a panel ... has expired." See NAFTA Art.1904:15(c). Therefore, as section 1516a(a)(5) indicates, time limits for commencing an action in the Court of International Trade shall not begin to run until the 31st day after the date of publication in the Federal Register of notice of the final determination. NAFTA Annex 1904.15, U.S. Schedule at ¶ 9. The statutory scheme contains no requirement that the parties actually invoke binational panel review and none has been cited to the court from other sources.

Thus, because the instant...