Heveafil Sdn. Bhd. v. United States , 23 Ct. Int'l Trade 447 ( 1999 )

Slip Op. 99 - 62
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: RICHARD W. GOLDBERG, JUDGE

HEVEAFIL SDN. BHD., and
FILMAX SDN. BHD.,
Plaintiffs,
v.
Court No. 97-04-00659
THE UNITED STATES,
Defendant.

[Plaintiff’s motion for judgment upon an agency record pursuant
to USCIT R. 56.1 is denied. Judgment entered for defendant.]
Dated: July 14, 1999
White & Case (Walter J. Spak and David E. Bond) for
plaintiffs Heveafil Sdn. Bhd., and Filmax Sdn. Bhd.
David W. Ogden, Acting Assistant Attorney General; David M.
Cohen, Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice (Lucius B. Lau); Office of
the Chief Counsel for Import Administration, United States
Department of Commerce (Myles S. Getlan), of counsel, for
defendant.
Court No. 97-04-00659 Page 2
OPINION
GOLDBERG, Judge: Plaintiff Heveafil Sdn. Bhd. ("Heveafil")
contests liquidation instructions issued by the U.S. Department
of Commerce ("Commerce") following an administrative review of
extruded rubber thread from Malaysia.1 See Extruded Rubber
Thread from Malaysia: Final Results of Antidumping Administrative
Review, 61 Fed. Reg. 54,767 (Oct. 22, 1996) ("Final Results").
Plaintiff challenges Commerce’s instructions under USCIT R. 56.1,
having filed a motion for judgment upon an agency record for an
action other than that described in 28 U.S.C. § 1581(c).
Plaintiff maintains the antidumping ("AD") statute requires
Commerce to cap antidumping duties on entries made during the
bonding period for purposes of calculating the assessment rate.
Because Commerce failed to calculate the assessment rate in this
manner, plaintiff claims Commerce’s liquidation instructions were
in error. Plaintiff requests a remand to Commerce with
instructions to recalculate the assessment rate. The Court
sustains Commerce’s liquidation instructions.
1
Because plaintiff Filmax Sdn. Bhd. lacked standing, the
Court dismissed its case. See Heveafil Sdn. Bhd. v. United
States, No. 97-04-00659, slip op. 98-115 (CIT Aug. 28, 1998).
Court No. 97-04-00659 Page 3
I.
BACKGROUND
This cases revolves around a provision of the antidumping
statute that limits collection of duties on subject merchandise
entered between the preliminary determination in the original
investigation and the International Trade Commission’s ("ITC")
final affirmative determination, a period commonly referred to as
the "bonding period." Specifically, 19 U.S.C. § 1673f(a)
provides as follows:
§ 1673f. Treatment of difference between deposit of
estimated antidumping duty and final assessed duty
under antidumping duty order
(a) Deposit of estimated antidumping duty under section
1673b(d)(2) of this title
If the amount of a cash deposit collected as security
for an estimated antidumping duty under section 1673b(d)(2)
of this title is different from the amount of the
antidumping duty determined under an antidumping duty order
published under section 1673e of this title, then the
difference for entries of merchandise entered, or withdrawn
from warehouse, for consumption before notice of the
affirmative determination of the Commission under section
1673d(b) of this title is published shall be 
(1) disregarded, to the extent the cash deposit
collected is lower than the duty under the order, or
(2) refunded, to the extent the cash deposit is higher
than the duty under the order.
19 U.S.C. § 1673f(a).2
Court No. 97-04-00659 Page 4
Prior to the underlying administrative review, Commerce
issued its preliminary findings in the original investigation on
April 2, 1992 and soon thereafter instructed the United States
Customs Service ("Customs") to collect provisional AD duties on
Heveafil’s entries at a rate of 2.62%. See Extruded Rubber
Thread from Malaysia: Preliminary Determination of Sales at LTFV,
57 Fed. Reg. 11,287 (Apr. 2, 1992). In the final determination,
Commerce assigned Heveafil a dumping rate of 10.68%, see Extruded
Rubber Thread from Malaysia: Final Determination of Sales at
LTFV, 57 Fed. Reg. 38,465 (Aug. 25, 1992), and on October 14,
1992, the ITC issued a final affirmative injury determination.
Consequently, the bonding period in this case ran from April 2,
1992 to October 14, 1992 -- the time frame between the
preliminary determination and the issuance of the ITC decision.
The underlying administrative review, which Commerce
initiated on December 17, 1993, was Commerce’s first review of
the outstanding order on extruded rubber thread from Malaysia.
2
Commerce initiated the underlying review before December
31, 1994. Consequently, the applicable statutory provisions are
those that existed on December 31, 1994, i.e., the law in effect
prior to the Uruguay Round Agreements Act, Pub. L. No. 103-465,
108 Stat. 4809 ("URAA"). See Torrington Co. v. United States, 68
F.3d 1347, 1352 (Fed. Cir. 1995).
Court No. 97-04-00659 Page 5
Importantly, this review covered entries made between April 2,
1992 and September 30, 1993 -- that is, entries made both during
and after the bonding period. See Initiation of AD and CVD
Administrative Reviews, 58 Fed. Reg. 65,964 (Dec. 17, 1993). In
October, 1996, Commerce issued its Final Results and assigned
Heveafil a dumping rate of 10.65%. See Final Results, 61 Fed.
Reg. at 54,773. Commerce did not issue the liquidation
instructions as part of the Final Results, however. Instead,
Commerce issued draft instructions in January, 1997 and then, on
April 4, 1997, instructed Customs to assess AD duties at a rate
of 9.85% for Heveafil’s entries during the first review period.
See Mem. from P. Schwartz, AD/CVD Enforcement ITA/DOC to Customs
(Apr. 2, 1996), Pub. Doc. No. 16. For the reasons discussed
below, Heveafil claims Commerce’s liquidation instructions were
unlawful.
II.
JURISDICTION
As a preliminary matter, there is a jurisdictional question.
Plaintiff and Commerce each assert that jurisdiction is
established under 28 U.S.C. § 1581(i), the court’s residual
jurisdiction provision. See Pl.’s Br. in Supp. of Mot. for J. on
Court No. 97-04-00659 Page 6
Agency R. ("Pl.’s Br.") at 3; Def.’s Br. in Opp’n to Mot. for J.
on Agency R. at 4. The Court agrees. It is incumbent upon the
Court to independently assess the jurisdictional basis for a
case, see Ad Hoc Committee of Fla. Producers of Gray Portland
Cement v. United States, 22 CIT __, __, 25 F. Supp.2d 352, 357
(1998), a principal that is especially true where a party seeks
to invoke the court’s residual jurisdiction authority. And,
"[i]t is well established that the residual jurisdiction of the
court under section 1581(i) may not be invoked when jurisdiction
under another subsection of § 1581 is or could have been
available, unless the relief provided under that other subsection
would be manifestly inadequate." Id. (internal quotations
omitted) (citing Norcal/Crosetti Foods, Inc. v. United States, 10
Fed. Cir. (T) 61, 64, 963 F.2d 356, 359 (1992)).
Here, it is appropriate to exercise residual jurisdiction
authority because jurisdiction under another subsection of
section 1581 is not available. Commerce’s instructions are not
subject to review under section 1581(a) because Commerce, not
Customs, is the agency responsible for issuing the instructions
and determining the amount of antidumping duty to be assessed.
Commerce’s liquidation instructions also are not reviewable under
Court No. 97-04-00659 Page 7
section 1581(c) because they were not part of the Final Results.
Rather, the instructions were issued nearly five months after the
Final Results were published, thereby making it impossible for
Heveafil to contest the instructions within thirty days of the
Final Results as required under 19 U.S.C. § 1516a(a)(2)(B)(iii).
And finally, none of the other subsections in section 1581 (a)
through (h) provides a basis for jurisdiction. Accordingly, the
issue of antidumping law presented in this case is appropriate
for review under section 1581(i).
III.
STANDARD OF REVIEW
Section 2640(e), Title 28, United States Code, provides that
"[i]n any civil action not specified in this section, the Court
of International Trade shall review the matter as provided in
section 706 of title 5." 28 U.S.C. § 2640(e) (1994). Section
2640 does not address civil actions filed under 28 U.S.C. §
1581(i). Accordingly, the Court reviews Commerce’s liquidation
instructions as provided in section 706 of title 5 and will find
them unlawful if they are "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C. §
706(2)(A) (1994).
Court No. 97-04-00659 Page 8
IV.
DISCUSSION
Plaintiff contends that, for purposes of calculating the
assessment rate, Commerce failed to disregard the excess
antidumping duties on entries made during the bonding period as
required by section 1673f(a)(1). Specifically, plaintiff states
that "[i]n calculating the dumping margin for each sale, and
ultimately Heveafil’s total antidumping duty liability for the
period of review, Commerce included entries during the bonding
period, but did not cap Heveafil’s liability for those entries.
Thus, the total amount of antidumping duties for entries during
the bonding period was included in the calculation of the
assessment rate." Pl.’s Br. at 6-7. Because section 1673f(a)(1)
limits the amount of duties that can be collected, Heveafil
argues that the excess duties must also be disregarded for
purposes of calculating the assessment rate. Therefore, Heveafil
maintains that Commerce should have calculated two assessment
rates here: one for the bonding period, in which excess duties
are not included, and a separate one for the period after the
bonding period that also does not include excess liability from
the bonding period. See Pl.’s Br. at 15.
Court No. 97-04-00659 Page 9
Instead, Commerce calculated a single assessment rate,
dividing the dumping margin found on sales of all subject
merchandise, both during and after the bonding period, by the
entered value of the merchandise. In doing so, Commerce did not
cap Heveafil’s liability on entries made during the bonding
period. As a result, plaintiff claims the excess dumping
liability from bonding period entries that should have been
disregarded has been shifted to the liability on entries made
after the bonding period. Plaintiff thus maintains the
liquidation instructions constitute an abuse of discretion and
are not in accordance with law.
Heveafil also notes that, at the administrative level,
Commerce never claimed that the company’s proposed assessment
rate was contrary to the statute. See Mem. from the Team to
Louis Apple Re: Calculation of Assessment Rates in the First
Review of Extruded Rubber Thread from Malaysia (Mar. 28, 1997)
("Apple Mem."), Pub. Doc. No. 15. Rather, Commerce rejected
Heveafil’s methodology in favor of a single assessment rate
because Heveafil’s sales listing did not contain entry dates for
most sales and, hence, it was unable to determine "which sales
fell within the bonding period and which did not." Id. at 3-4.
Court No. 97-04-00659 Page 10
Heveafil responds that Commerce’s decision in this respect is not
supported by substantial evidence.
Plaintiff is wrong. As recently addressed in Thai Pineapple
Canning Industry v. United States, No. 98-03-00487 (CIT May 5,
1999), section 1673f(a) simply provides a "limitation on
collection." Id., No. 98-03-00487, slip op. 99-41 at 28. The
statute does not suggest that the limitation on collection also
impacts the method used to compute an assessment rate. Indeed,
the basis for calculating dumping margins and assessment rates is
provided for elsewhere in the antidumping code. See id. (citing
19 U.S.C. § 1675(a)(2), which provides that Commerce shall
determine the foreign market value and U.S. price of each entry,
as well as the dumping margin for each entry). While Thai
Pineapple involved a post-URAA administrative review, the
substantive law at issue here was not changed by the Uruguay
Round amendments. Compare 19 U.S.C. §§ 1673f(a) and 1675(a)(2)
(1988), with 19 U.S.C. §§ 1673f(a) and 1675(a)(2) (1994). The
Court finds the reasoning in Thai Pineapple on point and correct
with respect to this issue. Commerce’s decision to use a single
assessment rate is plainly supported by the statute. In
addition, given the statute’s support for Commerce’s liquidation
Court No. 97-04-00659 Page 11
instructions, plaintiff’s substantial evidence argument is
mooted.
Finally, while Commerce agrees with this analysis, it
nevertheless requests a remand to articulate this view at the
administrative level. As noted earlier, Commerce neglected to
address the statutory basis for its action when it issued the
liquidation instructions. Apple Mem. at 3-4. Commerce thus
prays for a remand because it claims there is an issue of
statutory interpretation that must first be addressed by the
agency.
A remand is not necessary here. This is not a situation
that implicates agency discretion in the often complex and subtle
interplay between statutory standards and particular facts that
arise in the antidumping arena. Rather, as Thai Pineapple has
made clear, section 1675(a)(2) requires Commerce to calculate a
dumping margin for each entry. And, nothing in section 1673f(a)
indicates that Congress intended the cap on collection to impact
the independent calculation of the dumping margin and assessment
rate mandated in section 1675(a)(2). Therefore, because the
statute’s plain language guides the outcome of this case, a
remand is not appropriate. See Koyo Seiko Co., Ltd. v. United
Court No. 97-04-00659 Page 12
States, __ Fed. Cir. (T) __, __, 95 F.3d 1094, 1101 (1996)
(finding that a remand was inappropriate where the sole issue was
one of statutory construction).
V.
CONCLUSION
For the foregoing reasons, the Court finds that Commerce’s
liquidation instructions were in accordance with law. A separate
Judgment Order will be entered accordingly.
________________________________
Richard W. Goldberg
JUDGE
Date: July 14, 1999
New York, New York.
Court No. 97-04-00659 Page 13