Perry Chem. Corp. v. United States

• Decision Date: 22 July 2020
• Docket Number: Court No. 15-00168,Slip Op. 20-101
• Parties: PERRY CHEMICAL CORPORATION, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

463 F.Supp.3d 1326

PERRY CHEMICAL CORPORATION, Plaintiff,

v.UNITED STATES, Defendant.

Slip Op. 20-101

Court No. 15-00168

United States Court of International Trade.

July 22, 2020

Kelly A. Slater, Edmund W. Sim, and Jay Y. Nee, of Appleton Luff PTE LTD, of Washington, DC, for plaintiff Perry Chemical Corporation.

Joseph H. Hunt, Assistant Attorney General, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for defendant. With him on the brief were Jeanne E. Davidson, Director, Reginald T. Blades, Jr., Assistant Director, and Meen Geu Oh, Trial Attorney. Of counsel was Jessica M. Link, Assistant Chief Counsel, Office of the Chief Counsel for Enforcement and Compliance, U.S. Department of Commerce.

OPINION AND ORDER

Kelly, Judge:

Perry Chemical Corporation ("Perry") brings this action for judgment on the agency record pursuant to U.S. Court of International Trade Rule 56.1 as well as seeks a writ of mandamus compelling the U.S. Department of Commerce ("Commerce" or "Department") to issue corrected liquidation instructions to the U.S. Customs and Border Protection ("CBP"), directing reliquidation of certain entries of polyvinyl alcohol ("PVA") from Taiwan produced and exported by Chang Chun Petrochemical Co. Ltd. ("Chang Chun"), and to refund all cash deposits, with interest, made by Perry. See Compl. at ¶ 1, June 19, 2015, ECF No. 4; R. 56.1 Mot. J. Agency R. on Behalf of Pl. [Perry], Feb. 7, 2020, ECF No. 85 ("Pl.’s R. 56.1 Mot."); Pet. Writ Mandamus, June 19, 2015, ECF No. 5. Specifically, Perry requests reliquidation without regard for antidumping duties ("ADD"), in accordance with Commerce's final determination and revocation of the ADD order covering PVA from Taiwan, for entries liquidated on or after publication of a Timken notice (i.e., January 28, 2014), as well as for entries made during the time periods (1) March 1, 2012 through February 28, 2013 ("AR2 Period") and (2) March 1, 2013 through December 29, 2013 ("Open Period").¹ See Pl.’s R. 56.1 Mot. at 1–2; Memo. Supp. Pl. [Perry's] R. 56.1 Mot. J. Agency R. at 1–2, Feb. 7, 2020, ECF No. 86 ("Pl.’s Br."); see also [PVA] from Taiwan, 79 Fed. Reg. 4,442 (Dep't Commerce Jan. 28, 2014) (notice of ct. decision not in harmony with final determination of sales at less than fair value and revocation of [ADD] order) ("Timken Notice"). Defendant opposes Plaintiff's request for a writ of mandamus. See Def.’s Resp. Opp'n [Pl.’s Br.] at 1, 4 n.3, 6–12, Mar. 4, 2020, ECF No. 88 ("Def.’s Br.").² For the reasons that follow, Commerce's Post-Timken Instructions and liquidation of Open Period entries are contrary to law. However, Commerce's liquidation of Perry's AR2 entries is in accordance with law.

BACKGROUND

In April 2011, Chang Chun initiated an action challenging certain aspects of the final determination in the original investigation of PVA from Taiwan. See [PVA] from Taiwan, 76 Fed. Reg. 5,562 (Dep't Commerce Feb. 1, 2011) (final determination of sales at less than fair value) ("Final Results"); [ADD] Order: [PVA] From Taiwan, 76 Fed. Reg. 13,982 (Dep't Commerce Mar. 15, 2011) ("ADD Order"); see also Summons, Apr. 14, 2011, ECF No. 1 (from Dkt. Consol. Ct. No. 11-00095); Compl., May 16, 2011, ECF No. 8 (from Dkt. Consol. Ct. No. 11-00095). While the lawsuit progressed, Commerce, on April 30, 2012, initiated the first administrative review ("AR1") of the ADD Order, covering the period of review, September 13, 2010 through February 29, 2012. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 77 Fed. Reg. 25,401, 25,402 (Dep't Commerce Apr. 30, 2012) ; see also [PVA] From Taiwan, 78 Fed. Reg. 20,890, 20,890 (Dep't Commerce Apr. 8, 2013) (preliminary results of [ADD] admin. review; 2010–2012) ("Prelim. Results"). Chang Chun participated as the sole respondent. Prelim. Results, 78 Fed. Reg. at 20,890.

On April 10, 2013, the court issued its decision, remanding certain aspects of Commerce's final determination. See Chang Chun Petrochemical Co. v. United States, 37 CIT 514, 530, 906 F. Supp. 2d 1369, 1382 (2013) (" Chang Chun I"). Soon after, and before the conclusion of AR1, Commerce announced the initiation of the second administrative review ("AR2") of the ADD Order for the period of review, March 1, 2012 through February 28, 2013, where Chang Chun again was the only respondent. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 78 Fed. Reg. 25,418, 25,420 (Dep't Commerce May 1, 2013). On June 24, 2013, Commerce concluded AR1 and calculated a 0.00% dumping margin for Chang Chun. [PVA] from Taiwan, 78 Fed. Reg. 37,794, 37,795 (Dep't Commerce June 24, 2013) (final results of [ADD] admin. review; 2010–2012) ("AR1 Final Results"). Commerce instructed CBP to revise the cash deposit rate for Chang Chun's entries of subject PVA to 0.00%, effective June 24, 2013.³ See Cash Deposit Instructions for [PVA] from Taiwan (A-583-841), Message No. 3177303, PD 45, (June 26, 2013) ("CBP Message No. 3177303").⁴ Prior to that date, Perry had paid cash deposits equivalent to the margin calculated in the Final Results, i.e., 3.08%, on entries made from February 1, 2011. On July 1, 2013, following Chang Chun's withdrawal of its request for administrative review, Commerce rescinded AR2.⁵ See [PVA] From Taiwan, 78 Fed. Reg. 39,256 (Dep't Commerce July 1, 2013) (rescission of [ADD] administrative review; 2012–2013). Commerce instructed CPB to liquidate all entries of Chang Chun's subject PVA made during the AR2 period at the cash deposit rate at the time of entry, i.e., 3.08%. See Notification of Rescission of Admin. Review (A-583-841), Message No. 3199303 at ¶ 1, PD 7, (July 18, 2013) ("July Notice").

On July 12, 2013, Commerce issued its remand redetermination pursuant to Chang Chun I and calculated a weighted average dumping margin of 0.00% for Chang Chun. Results of Redetermination Pursuant to Court Remand, July 12, 2013, ECF No. 47-1 (from Dkt. Consol. Ct. No. 11-00095) ("Remand Results"). Following the court's decision sustaining the Remand Results, see Chang Chun Petrochemical Co. v. United States, 37 CIT 1716, 1724, 953 F. Supp. 2d 1300, 1307 (2013) (" Chang Chun II"), Commerce published a Timken notice⁶ on January 28, 2014, amending its Final Results and revoking the ADD Order in full. See Timken Notice, 79 Fed. Reg. at 4,442. On March 14, 2014, Commerce issued additional instructions directing CBP to liquidate Chang Chun's PVA entries made during the Open Period at the cash deposit rate in place at the time of entry ("Post-Timken Instructions").⁷ Liquidation Instructions for [PVA] from Taiwan Produced and/or Exported by [Chang Chun] and Revocation of [ADD] Order (A-570-583-841), Message No. 4073303, PD 1, (Mar. 14, 2014) ("Post-Timken Instructions"); see also Timken Notice, 79 Fed. Reg. at 4,442 n.2 (explaining the effective date of Chang Chun II ). Commerce's instructions specified that only the entries made on or after December 30, 2013 would be liquidated at 0.00%. See Post-Timken Instructions at ¶ 3. However, the instructions did not address AR2 entries that had not yet liquidated as of January 28, 2014. See id.

Subsequently, Perry initiated the present action. See Summons; Compl. On September 16, 2015, Defendant moved to partially dismiss Perry's complaint. See Def.’s Partial Mot. Dismiss Pl.’s Compl. With Respect to Previously Liquidated Entries and Entries for Which Pl. Had No Injury, Sept. 16, 2015, ECF No. 14. The court granted the motion in part, holding that Perry lacked standing with respect to entries for which it was not the importer and, further, that Perry had failed to state a claim for which relief could be granted for AR2 entries that had liquidated prior to the revocation of the ADD Order on January 28, 2014, because Perry failed to protect its interests by forestalling liquidation. See Perry Chemical Corporation v. United States, 43 CIT ––––, ––––, 375 F. Supp. 3d 1324, 1333–39 (2019) (" Perry I"). However, the court declined to dismiss Perry's claim with respect to AR2 entries "that were not liquidated on or before January 28, 2014, the date on which Commerce issued the Timken/Revocation Notice[.]" Id., 43 CIT at ––––, 375 F. Supp. 3d at 1339 ; see also Perry Chemical Corporation v. United States, 43 CIT ––––, 415 F. Supp. 3d 1260 (2019) (denying Defendant's motion for reconsideration of Perry I and rejecting its notice of errata) (" Perry II"). The government conceded that, with respect to entries Perry imported from Chang Chun during the Open Period, those entries were liquidated unlawfully. See Def.’s Supp. Br. Resp. Ct.’s July 19, 2016 Order at 15 n.3, Sept. 6, 2016, ECF No. 34.

On April 29, 2020, the court issued a letter to the parties, requesting further information as to the manufacturer of Perry's AR2 entries. See Letter, Apr. 29, 2020, ECF No. 91.⁸ Although Defendant initially contended that another entity⁹ was the producer and exporter of the AR2 entries, see Def.’s Br. at 9–12, in response to the court's letter, Defendant concedes, and agrees with Perry, that the AR2 entries are manufactured by Chang Chun. See Def.’s Resp. Ct. Letter at 8–9, June 12, 2020, ECF No. 102 ("Def.’s Letter"); see also Pl.’s Resp. Ct. Letter at 2–3, June 12, 2020, ECF No. 100; [Pl.’s] Cmts. Resp. [Def.’s Letter] at 1–2, June 19, 2020, ECF No. 104 ("Pl.’s Resp. Def.’s Letter"). However, Defendant now contends that the subject entries were deemed liquidated prior to the issuance of the Timken Notice. See Def.’s Letter at 8.

JURISDICTION AND STANDARD OF REVIEW

The court exercises jurisdiction pursuant to 28 U.S.C. § 1581(i)(4) (2012), which authorizes the court to review the administration and enforcement of, inter alia, ADD determinations under section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a.¹⁰ Commerce's liquidation instructions are reviewable under the Administrative Procedures Act ("APA")...