Snap-On, Inc. v. United States
| Citation | 949 F.Supp.2d 1346 |
| Decision Date | 16 December 2013 |
| Docket Number | Court No. 13–00238.,Slip Op. 13–150. |
| Parties | SNAP–ON, INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
OPINION TEXT STARTS HERE
Bruce J. Casino and J. Scott Maberry, Sheppard Mullin Richter & Hampton, LLP, of Washington, DC, for Snap-on, Inc.
Tara K. Hogan, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for Defendant. Also on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Joanna Theiss, Office of Import Trade Administration, Department of Commerce, of Washington, DC.
In this action, Plaintiff, Snap-on, Inc. (“Snap-on”), a U.S. importer of goods containing aluminum extrusions manufactured in China, seeks an order enjoining the Department of Commerce from requiring, and U.S. Customs and Border Protection from collecting, 374.15% “all others” cash deposits and countervailing duties for Plaintiff's entries. Plaintiff contends that the “all others” rate applicable to its entries should be 137.65% (the “revised rate”) in accordance with this court's judgment in MacLean–Fogg v. United States, 36 C.I.T. ––––, 885 F.Supp.2d 1337 (2012) (“MacLean–Fogg IV ”). 1
The court has jurisdiction over Plaintiff's claim under 28 U.S.C. § 1581(i) (2006).
Currently before the court are Defendant's Motion to Dismiss and for Summary Judgment, ECF No. 16, and Plaintiff's Motion for Summary Judgment, Motion for Writ of Mandamus, Declaratory Relief, or Preliminary Injunction, ECF No. 18. By its motion, Defendant asserts that, as a matter of law, Plaintiff cannot establish entitlement to the revised 137.65% rate. In its cross-motion, Plaintiff asserts that it is entitled to the revised rate and thus the court should grant its request for a writ of mandamus, declaratory judgment, and permanent injunction.
As explained below, because there was no injunction suspending the liquidation 2 of Plaintiff's entries in the litigation challenging the 374.15% rate, or any subsequent administrative review, and because Plaintiff did not participate in any of these proceedings, Section 561A(c) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(c)(1) (2006),3 requires that Defendant's motion be granted.
The duty rates at issue stem from Commerce's April 27, 2010 initiation of antidumping (“AD”) and countervailing duty (“CVD”) investigations of certain aluminum extrusions from the People's Republic of China (“China” or “PRC”). Statement of Stipulated Facts (“Stipulated Facts”), ECF No. 15 at ¶¶ 6–7; see also Aluminum Extrusions from the People's Republic of China, 75 Fed.Reg. 22,114 (Dep't Commerce Apr. 27, 2010) (initiation of countervailing duty investigation); Aluminum Extrusions from the People's Republic of China, 75 Fed.Reg. 22,109 (Dep't Commerce Apr. 27, 2010) (initiation of antidumping duty investigation). In that investigation, Commerce, on April 4, 2011, issued a final CVD determination that set the CVD rate for those exporters and producers not individually investigated (the “all others” rate) 4 at 374.15%. Stipulated Facts at ¶ 12; see also Aluminum Extrusions from the People's Republic of China, 76 Fed.Reg. 18,521 (Dep't Commerce Apr. 4, 2011) (final affirmative countervailing duty determination).
Snap-on's merchandise was entered after Commerce's final CVD determination—between May 31, 2011, and March 12, 2012. Stipulated Facts at ¶¶ 14, 16–24, 30. The merchandise constitutes ten entries of goods manufactured by Zhangjiagang GuPai Aluminum Industry Co. (“GuPai”). Although Commerce's final affirmative countervailing determination was challenged in this court, neither GuPai nor Snap-on participated in the investigation as a named respondent or otherwise qualify for a separate rate for entries of subject merchandise, Stipulated Facts at ¶ 9, nor was either a party to the court review.
Snap-on also did not deposit estimated countervailing duties on their entries. Stipulated Facts at ¶ 24. Rather, the entries were designated as CBP Entry Type 01. Id.5 Customs did not accept the Type 01 designation 6 and instructed Snap-on to obtain a scope ruling from Commerce for their aluminum extrusion imports. Id. at ¶ 29.7
Fifteen months after its final determination, on July, 10, 2012, Commerce initiated the first administrative review of the CVD and AD orders on aluminum extrusions from China. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 77 Fed.Reg. 40,565 (Dep't Commerce July 10, 2012) (initiation of antidumping and countervailing duty administrative reviews and request for revocation in part).8 Consistent with its initiation notice, Commerce instructed Customs to “assess countervailing duties on merchandise entered, or withdrawn from warehouse, for consumption at the cash deposit or bonding rate in effect on the date of entry,” for all firms for whom no review request was made.9 Stipulated Facts at ¶ 34 (). Because no request was made for review of GuPai, the GuPai entries entered prior to initiation of the first administrative review became subject to liquidation at the 374.15% rate that was in effect on the date of entry.10
Prior to any liquidation, however, on December 20, 2012, Commerce notified CBP that it had amended its final CVD determination consistent with MacLean–Fogg IV and instructed CBP to collect an all others cash deposit rate of 137.65% for all shipments of aluminum extrusions from the PRC entered on or after December 10, 2012. Id. at ¶ 39 ().
Also, on June 10, 2013, Commerce issued the preliminary results of its Countervailing Duty Administrative Review of the First Review Period, which stated that CBP would be instructed to collect cash deposits of estimated countervailing duties at the “most recent” applicable “all others” rate. Id. at ¶ 43 ().
Thereafter, Commerce, on June 28, 2013, initiated the second administrative review of the CVD order in effect on aluminum extrusions from the PRC for the period of January 1, 2012, to December 31, 2012 and the AD order in effect on aluminum extrusions from the PRC for the period of review May 1, 2012 through April 30, 2013. Id. at ¶ 45–46. Consistent with the initiation of the second administrative review, on July 16, 2013, Commerce issued liquidation instructions for entries made by all firms except those subject to the review. Id. at ¶ 48 (). Once again, no request was made for review of the entries from GuPai, and the GuPai entries became subject to liquidation under the CVD order.11
However, as referenced above, Commerce amended the final determination in the CVD investigation, reducing the all others rate from 374.15% to 137.65% in response to MacLean–Fogg IV. That decision followed several rounds of litigation. First, in Maclean–Fogg I, importers of aluminum extrusions from China challenged the all others CVD rate. Maclean–Fogg v. United States, 36 C.I.T. ––––, 836 F.Supp.2d 1367 (2012). To calculate the all others rate, Commerce had excluded the weighted average of voluntary respondents' rates and used the weighted average adverse facts available rate of the uncooperative mandatory respondents.12Id. at 1375 (). The court held that Commerce's choice of methodology was reasonable but its calculation process was not and remanded the case for recalculation or further explanation. Id. at 1376. In MacLean–Fogg II, on a motion to seek reconsideration of the court's opinion in Maclean–Fogg I, the Plaintiffs claimed that the court should also address Commerce's preliminary rate determination. MacLean–Fogg v. United States, 36 C.I.T. ––––, 853 F.Supp.2d 1253 (2012). The motion was granted in part, holding that the preliminary rate determination would be reviewed for reasonableness upon consideration of the remand results. Id. In MacLean–Fogg III, the Court reviewed Commerce's remand results. Finding that Commerce used the same method in calculating the all others CVD rate, the court remanded again for recalculation or for further explanation as to whether the rate was punitive. Maclean–Fogg v. United States, 36 C.I.T. ––––, 853 F.Supp.2d 1336, 1343 (2012). In Maclean–Fogg IV, Commerce recalculated the all others CVD rate, finding the preliminary rate of 137.65% to be the appropriate rate. The CIT affirmed. MacLean–Fogg IV, 885 F.Supp.2d at 1343. The Court found that the application of this rate was reasonable and remedial given the lack of information on the record that Commerce could use in making...
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