YC Rubber Co. v. United States, 110819 USCIT, 19-00069

Docket Nº:19-00069, Slip Op. 19-139
Opinion Judge:MARK A. BARNETT, JUDGE
Party Name:YC RUBBER CO. (NORTH AMERICA) LLC AND SUTONG TIRE RESOURCES, INC. (FORMERLY KNOWN AS SUTONG CHINA TIRE RESOURCES), Plaintiffs, v. UNITED STATES, Defendant. KENDA RUBBER (CHINA) CO., LTD., Plaintiff-Intervenor, and MAYRUN TYRE (HONG KONG) LIMITED AND ITG VOMA CORPORATION, Consolidated-Plaintiffs,
Attorney:Lizbeth R. Levinson, Ronald M. Wisla, and Brittney R. Powell, Fox Rothschild LLP of Washington, D.C., for Plaintiff-Intervenor Kenda Rubber (China) Co., Ltd. Ashley Akers, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendant ...
Judge Panel:Before: Mark A. Barnett, Judge
Case Date:November 08, 2019
Court:Court of International Trade
 
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YC RUBBER CO. (NORTH AMERICA) LLC AND SUTONG TIRE RESOURCES, INC. (FORMERLY KNOWN AS SUTONG CHINA TIRE RESOURCES), Plaintiffs,

KENDA RUBBER (CHINA) CO., LTD., Plaintiff-Intervenor,

and

MAYRUN TYRE (HONG KONG) LIMITED AND ITG VOMA CORPORATION, Consolidated-Plaintiffs,

v.

UNITED STATES, Defendant.

No. 19-00069

Slip Op. 19-139

Court of Appeals of International Trade

November 8, 2019

[Denying Plaintiff-Intervenor Kenda Rubber (China) Co., Ltd.'s motion to modify the statutory injunction.]

Lizbeth R. Levinson, Ronald M. Wisla, and Brittney R. Powell, Fox Rothschild LLP of Washington, D.C., for Plaintiff-Intervenor Kenda Rubber (China) Co., Ltd.

Ashley Akers, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendant United States. With her on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director.

Before: Mark A. Barnett, Judge

OPINION AND ORDER

MARK A. BARNETT, JUDGE

Before the court is Plaintiff-Intervenor Kenda Rubber (China) Co., Ltd.'s ("Kenda") motion to modify the statutory injunction entered on July 2, 2019, to cover more than 250 entries of Kenda's subject merchandise during the period of review that were liquidated on June 14 and 21, 2019. See Confidential Pl.-In't's Mot. to Modify the Statutory Inj., ECF No. 31; Confidential Mem. of P&A in Supp. of Pl.-Int.'s Mot. to Modify the Statutory Inj. ("Kenda's Mem."), ECF. No. 31-1. Defendant United States ("the Government") opposes Kenda's motion. See Def.'s Resp. in Opp'n to Int.'s Mot. to Modify the Statutory Inj. ("Def.'s Resp."), ECF No. 33. For the following reasons, Kenda's motion is denied.

Background

On April 26, 2019, Commerce published the final results of the second administrative review of the antidumping duty order covering certain passenger vehicle and light truck tires from the People's Republic of China for the period of review of August 1, 2016, through July 31, 2017.[1] See Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China, 84 Fed. Reg. 17, 781 (Dep't Commerce Apr. 26, 2019) (final results of antidumping duty admin. review and final determination of no shipments; 2016-2017) ("Final Results"), ECF No. 24-4, and accompanying Issues and Decision Mem., A-570-016 (Apr. 19, 2019), ECF No. 24-5. Of relevance to this motion, Commerce assigned a weighted-average dumping margin to Kenda in the amount of 64.57 percent. Final Results, 84 Fed. Reg. at 17, 782.

Commerce informed interested parties that it "intend[ed] to issue appropriate assessment instructions directly to [U.S. Customs and Border Protection ("Customs")] 15 days after publication of the final results of this administrative review." Id. at 17, 783.

On May 14, 2019, 18 days after Commerce published the Final Results, Commerce sent liquidation instructions to Customs covering relevant entries of subject merchandise from Kenda, among others. Def.'s Resp. at 2 (citing Message No. 9134302, Liquidation Instructions for Certain Passenger Vehicle and Light Truck Tires from the People's Republic of China Exported by Various Companies for the Period 08/01/2016 through 07/31/2017, A-570-016, (May 14, 2019) ("Liquidation Instructions")); see also Kenda's Mem. at 1-2.

On May 23, 2019, Plaintiffs YC Rubber Co. (North America) LLC and Sutong Tire Resources, Inc. (formerly known as Sutong China Tire Resources) filed a summons and complaint in this case. See Summons, ECF No. 1; Compl., ECF No. 2. On May 24, 2019, Plaintiffs filed Form 24 proposed orders for statutory injunctions and said orders were entered the same day.2

See Orders for Statutory Inj. Upon Consent (May 24, 2019), ECF Nos. 11-12. These injunctions did not cover Kenda's entries of subject merchandise. See id.

On June 14 and 21, 2019, pursuant to the Liquidation Instructions, Customs liquidated over 250 (but not all) of Kenda's entries of subject merchandise at the rate determined in the Final Results. See Kenda's Mem. at Ex. 1 (Decl. of Robin Pickard, Vice President of Finance and Accounting at Kenda (undated) ("Pickard Decl.")), ¶ 4. By June 25, 2019, Kenda became aware that Customs had liquidated these entries. Id. Upon learning of these liquidations, Kenda contacted counsel about intervening in this litigation. Id. ¶ 5.

On June 27, 2019, Kenda filed a consent motion to intervene in this litigation. See Proposed Pl.-Int.'s Consent Mot. to Intervene as a Matter of Right, ECF No. 18. The following day, the court granted Kenda's motion to intervene. Order (June 28, 2019), ECF No. 21.

On July 2, 2019, 3 Kenda filed a Form 24 proposed order for a statutory injunction to enjoin Commerce or Customs from "issuing instructions to liquidate or making or permitting liquidation of any unliquidated entries of" subject merchandise exported by Kenda that were subject to the Final Results. Proposed Inj. at 1-2. Kenda's proposed order covered "any entries inadvertently liquidated after this order [was] signed but before this injunction [was] fully implemented by [Customs] . . . ." Id. at 3. The court entered the injunction later that same day. See Injunction.

Jurisdiction And Standard Of Review

The court has jurisdiction pursuant to Section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012) 4 and 28 U.S.C. § 1581(c) (2012). Alternatively, to the extent that it is properly before the court, see infra note 7, the court has jurisdiction pursuant to 28 U.S.C. § 1581(i) to review Kenda's challenge to Commerce's issuance of the Liquidation Instructions pursuant to its 15-Day Policy. 5See Mittal Steel Galati S.A. v. United States, 31 CIT 730, 738-39, 491 F.Supp.2d 1273, 1280 (2007) (stating that "this vexing jurisdictional question. . . is largely academic" because the court has jurisdiction pursuant to...

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