Perry Chem. Corp. v. United States, Slip Op. 19-43

• Decision Date: 05 April 2019
• Docket Number: Court No. 15-00168,Slip Op. 19-43
• Citation: 375 F.Supp.3d 1324
• Parties: PERRY CHEMICAL CORPORATION, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

375 F.Supp.3d 1324

PERRY CHEMICAL CORPORATION, Plaintiff,
v.
UNITED STATES, Defendant.

Slip Op. 19-43
Court No. 15-00168

United States Court of International Trade.

Dated: April 5, 2019

375 F.Supp.3d 1326

Kelly A. Slater, Appleton Luff Pte Ltd, of Washington, DC argued for Perry Chemical Corporation. With her on the brief were Edmund W. Sim and Jay Y. Nee.

Alexander O. Canizares, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With him on the brief was Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of Counsel on the brief was Melissa M. Brewer, Attorney, Office of the Chief Counsel for Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

OPINION AND ORDER

Kelly, Judge:

Perry Chemical Corporation ("Perry") brings this action to seek a writ of mandamus compelling the U.S. Department of Commerce ("Commerce") to issue modified liquidation instructions to U.S. Customs and Border Protection ("CBP") directing reliquidation without regard to antidumping duties of all entries of polyvinyl alcohol ("PVA") from Taiwan produced and exported by Chang Chun Petrochemical Co. Ltd. ("Chang Chun") during the periods of March 1, 2012 to February 28, 2013 and March 1, 2013 to December 29, 2013. Compl. at ¶ 1, June 19, 2015, ECF No. 4. Defendant, the United States, moves to dismiss, pursuant to United States Court of International Trade ("USCIT") Rules 12(b)(1) and 12(b)(6), respectively, Perry's complaint with respect to imports for which it alleges Perry sustained no injury, and with respect to the portion of Perry's complaint pertaining to imports of subject merchandise entered during the period of March 1, 2012 to February 28, 2013. See

375 F.Supp.3d 1327

Def.'s Partial Mot. Dismiss Pl.'s Compl. With Respect to Previously Liquidated Entries & Entries for Which Pl. Had No Injury at 1, 7–8, 9–15, Sept. 16, 2015, ECF No. 14 ("Def.'s Partial Mot. Dismiss"). Perry submitted a response opposing Defendant's motion. See Pl.'s Resp. Opp'n Def.'s Partial Mot. Dismiss Pl.'s Compl. With Respect to Previously Liquidated Entries & Entries for Which Pl. Had No Injury, Nov. 6, 2015, ECF No. 20 ("Pl.'s Resp. Br."). The court held oral argument on May 20, 2016. See Appearance Sheet, May 23, 2016, ECF No. 30. The parties also submitted supplemental briefing in response to the court's request. See Def.'s Suppl. Br. Resp. Ct.'s July 19, 2016 Order, Sept. 6, 2016, ECF No. 34 ("Def.'s Suppl. Br.") ; Pl. [Perry's] Br. Resp. Def.'s Suppl. Br. Resp. Ct.'s July 19, 2016 Order, Sept. 27, 2016, ECF No. 35 ("Pl.'s Suppl. Resp. Br.") ; Def.'s Reply Suppl. Br. Resp. Ct.'s July 19, 2016 Order, Oct. 25, 2016, ECF No. 38 ("Def.'s Reply Suppl. Br.") ; see also Order, July 19, 2016, ECF No. 31. On January 15, 2019, the case was reassigned pursuant to 28 U.S.C. § 253(c) and USCIT Rule 77(e)(4). For the reasons that follow, Defendant's partial motion to dismiss is granted in part and denied in part.

BACKGROUND

On September 27, 2004, Commerce initiated an investigation into imports of PVA from Taiwan. See Initiation of Antidumping Duty Investigation: [PVA] from Taiwan, 69 Fed. Reg. 59,204 (Dep't Commerce Oct. 4, 2004).¹ Commerce issued its preliminary determination on September 13, 2010, in which it calculated a preliminary antidumping margin of 3.02% for Chang Chun, an exporter of PVA and the only respondent participating in the investigation. [PVA] from Taiwan, 75 Fed. Reg. 55,552, 55,558 (Dep't Commerce Sept. 13, 2010) (preliminary determination of sales at less than fair value and postponement of final determination) ("Preliminary Determination"). Pursuant to its findings in the Preliminary Determination, Commerce instructed CBP to suspend liquidation of entries of the subject merchandise beginning September 13, 2010, and to collect cash deposits or bonds at 3.02% ad valorem on shipments exported by Chang Chun to the United States. See CBP Administrative Message No. 0257305 [attached as Ex. 3 to Compl.] at 2, 4, Sept. 14, 2010, ECF No. 4.

On February 1, 2011, Commerce issued its final determination in the investigation, calculating an antidumping margin of 3.08% for Chang Chun. See [PVA] from Taiwan, 76 Fed. Reg. 5,562 (Dep't Commerce Feb. 1, 2011) (final determination of sales at less than fair value) ("Inv. Final Determination"). Pursuant to the Inv. Final Determination, Commerce instructed CBP to suspend liquidation of entries of subject PVA beginning February 1, 2011,

375 F.Supp.3d 1328

and to require cash deposits or bonds at 3.08% ad valorem on shipments produced and exported by Chang Chun. See CBP Administrative Message No. 1033307 [attached as Ex. 4 to Compl.] at 2, 4, Feb. 2, 2011, ECF No. 4. Commerce published the antidumping duty ("ADD") order on PVA from Taiwan on March 15, 2011, see [ADD] Order: [PVA] From Taiwan, 76 Fed. Reg. 13, 982 (Dep't Commerce Mar. 15, 2011) ("ADD Order"), and instructed CBP to continue suspension of liquidation for subject entries made on or after March 14, 2011 and to collect cash deposits equal to the rate in effect at the time of entry. CBP Administrative Message No. 1075302 [attached as Ex. 5 to Compl.] at 2, Mar. 16, 2011, ECF No. 4. For Chang Chun, that rate was 3.08%. Compl. at ¶ 15. Plaintiff, Perry, is a U.S. importer of the subject PVA from Taiwan produced and exported by Chang Chun during the relevant periods: March 1, 2012 through February 28, 2013 ("AR2 period"), and March 1, 2013 through December 29, 2013 ("Open Period"). Compl. at ¶ 9.

On April 14, 2011, Chang Chun initiated an action before this court challenging certain aspects of Commerce's Inv. Final Determination. Summons, Apr. 14, 2011, ECF No. 1 (Chang Chun Petrochemical Co. Ltd. v. United States, Consol. Ct. No. 11-00095); Compl., May 16, 2011, ECF No. 8 (Chang Chun Petrochemical Co. Ltd. v. United States, Consol. Ct. No. 11-00095).

On April 30, 2012, Commerce announced the initiation of the first administrative review ("AR1") of the ADD order on PVA from Taiwan. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 77 Fed. Reg. 25,401 (Dep't Commerce Apr. 30, 2012). The period of review for AR1 was September 13, 2010 through February 29, 2012. [PVA] From Taiwan, 78 Fed. Reg. 20,890, 20,890 (Dep't Commerce Apr. 8, 2013) (preliminary results of [ADD] administrative review; 2010–2012). As in the investigation, Chang Chun participated as the only respondent. On June 15, 2012, Commerce instructed CBP to continue suspending liquidation of Chang Chun's subject entries of PVA from Taiwan and to continue collecting cash deposits at the current rate. See CBP Administrative Message No. 2166302 [attached as Ex. 6 to Compl.] at 2–3, June 14, 2012, ECF No. 4. Perry thus continued to make cash deposits of 3.08% on its entries of subject merchandise. Compl. at ¶ 18.

On April 8, 2013, Commerce published the preliminary results of AR1, in which it calculated an antidumping margin for Chang Chun of 0.00%. See [PVA] From Taiwan, 78 Fed. Reg. 20,890 (Dep't Commerce Apr. 8, 2013) (preliminary results of [ADD] administrative review; 2010–2012). Commerce explained that the cash deposit rate for Chang Chun would "be the rate established in the final results of [AR1]," and that "[t]hese cash deposit requirements, when imposed, shall remain in effect until further notice." Id. at 20,891. Perry thus continued to make cash deposits on its imports of subject PVA from Taiwan at 3.08%, ahead of the final results of AR1. Compl. at ¶ 19.

On April 10, 2013, the court remanded for further consideration Commerce's Inv. Final Determination. Chang Chun Petrochemical Co. Ltd. v. United States, 37 CIT ––––, ––––, 906 F.Supp.2d 1369, 1382 (2013) (" Chang Chun I"). On May 1, 2013, Commerce announced the initiation of the second administrative review ("AR2") of the ADD order covering PVA from Taiwan. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 78 Fed. Reg. 25,418 (Dep't Commerce May 1, 2013). The period of review for AR2 was March 1, 2012 through February 28, 2013.

375 F.Supp.3d 1329

Id. at 25,420. Chang Chun was again the only respondent. Id. As a result of the initiation of AR2, Commerce instructed CBP to continue suspending liquidation of Chang Chun's subject entries of PVA and to continue collecting cash deposits at the rate in effect at the time. See CBP Administrative Message No. 3140309 [attached as Ex. 7 to Compl.] at 2–3, May 20, 2013, ECF No. 4. Perry thus continued to make cash deposits on its entries of subject PVA at a rate of 3.08%. Compl. at ¶ 22.

On June 24, 2013, Commerce published the final results of AR1, affirming its preliminary determination of a 0.00% antidumping margin for Chang Chun. [PVA] from Taiwan, 78 Fed. Reg. 37,794 (Dep't Commerce June 24, 2013) (final results of [ADD] administrative review; 2010–2012). Pursuant to the results of AR1, Commerce instructed CBP to revise the cash deposit rate for Chang Chun's entries of subject PVA to 0.00%, effective June 24, 2013. See CBP...