Viraj Forgings Ltd. v. U.S., Slip Op. 02-44. No. 99-03-00123.

• Decision Date: 06 May 2002
• Docket Number: Slip Op. 02-44. No. 99-03-00123.
• Citation: 206 F.Supp.2d 1288
• Parties: VIRAJ FORGINGS LTD. and M/S Dishaka U.S.A., Inc., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. Court of International Trade

206 F.Supp.2d 1288

VIRAJ FORGINGS LTD. and M/S Dishaka U.S.A., Inc., Plaintiffs, v. UNITED STATES of America, Defendant.

Slip Op. 02-44. No. 99-03-00123.

United States Court of International Trade.

May 6, 2002.

Miller & Chevalier, Chartered (Peter Koenig) for the plaintiffs.

Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Lucius B. Lau); and Office of Chief Counsel for Import Administration, U.S. Department of Commerce (Cindy G. Buys and Edna Boyle-Lewicki), for the defendant, of counsel.

Opinion

AQUILINO, Judge.

[Plaintiffs' motion for judgment on the agency record granted, in part.]

By order of the court upon the consent of the parties, this action consolidates a complaint in the name of Viraj Forgings Ltd., a producer of merchandise allegedly within the ambit of the Amended Final Determination and Antidumping Duty Order; Certain Forged Stainless Steel Flanges from India, 59 Fed.Reg. 5,994 (Feb. 9, 1994), of the International Trade Administration, U.S. Department of Commerce ("ITA"), with a subsequent summons and complaint in the names of the same Indian producer and the U.S. importer of record of its product, M/S Dishaka U.S.A., Inc. The gravamen of these pleading(s) is that no antidumping duties be imposed upon Viraj entries through January 1997 under the guise of the aforesaid ITA order.

I

According to the essentially-identical complaints, there were only two such entries, numbered 0630859-2 and 0630988. Jurisdiction of the court is pleaded under 28 U.S.C. §§ 1581(i), 2631(i), which has engendered answer(s) by the defendant in accordance with CIT Rule 7(a), followed by a motion by the plaintiffs for judgment upon the ITA's record pursuant to Rule 56.1. The papers submitted in support of and opposition to the motion outline salient facts that are not genuinely in dispute. The defendant asserts that, on

June 17, 1997, Commerce issued instructions (message number 7167117) to the U.S. Customs Service ... to liquidate Entry Number 0630859-2 at zero rate of anti-dumping duty.

Defendant's Memorandum in Opposition, p. 8. In doing so, this memorandum cites defendant's answer, paragraph 22, which also admitted (without explanation) plaintiffs' allegation "with respect to Commerce's non-issuance of liquidation instructions concerning Entry Number 0630988". In other words, this action apparently boils down to this lone shipment from India, and over which neither side has been willing to budge short of this court disposition years after its arrival, allegedly some time between January 1996 and February 1997 per plaintiffs' complaint(s), paragraph 12.

The background of this stalemate is that, at the time of the American domestic industry's petition to the ITA to investigate allegations of sales in the United States of stainless steel flanges from India at less than fair value, Viraj Forgings Ltd. was not involved. The resultant affirmative ITA determination and order, supra, set an initial antidumping-duty rate of 162.14 percent for Indian producers not accounted for therein individually. See 59 Fed.Reg. at 5,995. Later that year, Congress passed the Uruguay Round Agreements Act ("URAA"), Pub.L.No. 103-465, § 220(a), 108 Stat. 4809, 4858 (1994), effective January 1995 and stating that, if the ITA

receives a request from an exporter or producer of the subject merchandise establishing that—

(I) such exporter or producer did not export the merchandise that was the subject of an anti-dumping duty ... order to the United States ... during the period of investigation, and

(II) such exporter or producer is not affiliated . . . with any exporter or producer who exported the subject merchandise to the United States ... during that period,

[it] shall conduct a review under this subsection to establish an individual weighted average dumping margin ... for such exporter or producer.

19 U.S.C. § 1675(a)(2)(B)(i). Viraj Forgings Ltd. availed itself of this provision, and the agency responded in "accordance with section 353.22(h) of the Department's interim regulations". Certain Forged Stainless Steel Flanges From India; Initiation of New Shipper Antidumping Duty Administrative Review, 60 Fed.Reg. 55,241 (Oct. 30, 1995). This notice set the period to be reviewed as March 1 to August 31, 1995, which proved barren of any Viraj entries and which, in the absence of comment by any other interested party, led to publication of an ITA determination of the zero dumping margin for that Indian firm: The

Department shall instruct the U.S. Customs Service to assess no antidumping duties on all appropriate entries.

Furthermore, ... the cash deposit rate for Viraj will be zero percent.

Certain Forged Stainless Steel Flanges From India: Final Results of Antidumping Duty New Shipper Review, 62 Fed. Reg. 1,317 (Jan. 9, 1997).

As indicated above, however, by the time of this final publication, both of the above-numbered entries had landed. In any event, shortly thereafter, given that February was the anniversary month of the ITA antidumping-duty order, supra, all parties interested therein were duly invited to consider requesting an administrative review thereof by the agency—for the period February 1, 1996 to January 31, 1997. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 62 Fed.Reg. 4,978 (Feb. 3, 1997). The deadline for doing so was stated to be the last day of February 1997. Viraj Forgings Ltd. made no request for agency review during that time-frame. Rather, on March 13, 1997, counsel, apparently newly-retained by the company, submitted an "unusual request for the Department to self-initiate an annual review of Viraj"¹ based upon the following representations, among others:

Viraj has just completed a new exporter review for flanges.... Sales reported in th[at] ... review were based on purchase orders during the March to August 1995 new exporter review period. USA shipments, invoicing and entries pursuant to these purchase orders occurred during the February 1996 to January 1997 period.

Discussions by USA importers of Viraj flanges with U.S. Customs this week indicate ... now ... some confusion on whether:

(a) that new exporter review just covers USA entries during the March to August 1995 period ... when in fact (b) that review covered orders during that period with shipments and entries actually occurring well after the March to August 1995 new exporter review period....

There was also some confusion as to certain aspects of the new exporter review, such as:

(a) the meaning of the zero dumping cash deposit requirement during the annual review periods covered by a new exporter review and the belief that, if no party requested a review during the zero cash deposit period, the result would be liquidation at that rate (per normal annual review practice of the past); and,

(b) the belief that the bonding requirement for a new exporter who has not previously been reviewed to determine a dumping rate and in the context of the just-established statutory new exporter provisions means a promise to pay any dumping duty later determined to be owed, with no dumping rate actually established at that point for the new exporter until the conclusion of the new exporter review.

The concern is that Viraj, having participated in a new exporter review, and having demonstrated that it sells in the USA without dumping, will, as a result of confusion regarding the transition to new dumping procedures be subject to 162% dumping duties, and even for entries for which Viraj was found not be [sic] dumping in the new exporter review. ...

* * * * * *

Alternatively, given that Viraj's original request for a new exporter review, based on orders during the new exporter review period, covered shipments which entered the USA during the February 1996 to January 1997 time period, the Department could interpret Viraj's prior request for a new exporter review liberally as a request (well before February 28, 1997) for an annual review of entries during the February 1996 to January 1997 time period as well (given the sales data which Viraj submitted to the Department during the course of that review).

Since this request is made even before the Department's initiation of annual reviews for the February 1996 to January 1997 time period, this self-initiated review could be completed within the statutory time limits without (we believe) administrative inconvenience.²

The ITA denied this request in a letter ruling, concluding that,

if the Department does not receive a timely request for an administrative review, the Department will instruct ... Customs ... to assess antidumping duties on the merchandise at rates equal to the cash deposit of, or bond for, estimated antidumping duties required on that merchandise at the time of entry. Neither ... URAA[] nor the Department's proposed regulations implementing the URAA amends the Department's regulation pertaining to automatic assessment of duties under 19 CFR § 353.22(e). Please be advised that based upon the above regulations, the Department has issued instructions to ... Customs ... to assess duties equal to the deposit or bond rate for any entries for which no administrative review was requested.³

Hence, the certified record filed herein, such as it is, reflects a disparate approach by the defendant to plaintiffs' entries in a setting conjuring the English embrace in the common law of the French laschesse. Indeed, while referring to "the long delay by the Department in issuing ... such instructions",⁴ intimating "commence[ment] of a court appeal immediately",⁵ and asserting that they "would ask the court to enjoin the liquidation pending the outcome of the appeal",⁶ the plaintiffs actually allowed to pass most of what they claim is the controlling, two-year period of limitation per 28 U.S.C. § 2636(i) before filing...