CIT says ITA AD/CV Deadlines also Not Mandatory Because of Lack of Statutory Consequence
The Court of International Trade denied Husqvarna’s petition for a writ of mandamus to compel the International Trade Administration to issue a “provisional cash deposit rate” in the overdue 2009-10 antidumping administrative review of diamond sawblades and parts thereof from China (A-570-900). The ITA failed to meet its final results deadline of 180 days after the preliminary results to establish the rate, because it's investigating allegations of fraud in the proceeding. Husqvarna argued it's entitled to a much lower separate rate than the China-wide rate importers currently pay for its merchandise. But CIT, using logic similar to that of the recent Hitachi and Norman G. Jensen rulings on custom protest deadlines, said the statutory 180-day final results deadline is only directory, not mandatory, because the law includes no consequence for noncompliance.
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(The governing statute is 19 USC 1675(a)(3)(A), which says the ITA “shall make . . . a final determination . . . within 120 days after the date on which the preliminary determination is published. If it is not practicable to complete the review within the foregoing time, [the ITA]. . . may extend that 120-day period to 180 days.”)
Husqvarna (Hebei) Co., Ltd., a Chinese manufacturer of diamond sawblades, is currently considered part of the China-wide entity with an AD rate of 164.09 percent. The company requested separate rate status in the 2009-10 administrative review of diamond sawblades from China, and the preliminary results, which were issued on time in December 2011, preliminarily assigned Husqvarna a separate AD rate of 8.5 percent. As a preliminary rate, it had no effect on required cash deposits. Importers still had to pay 164.09 percent. On June 4, 2012, the statutory 180-day deadline for issuance of the final results, the ITA further extended the deadline to Dec. 21 because it said it was conducting an investigation into country of origin fraud by Korean diamond sawblades exporters, also subject to an antidumping duty order. The alleged fraud included some mandatory respondents from the China investigations, but not Husqvarna.
Husqvarna requested a writ of mandamus to make the ITA give it a provisional AD rate of 8.5 percent while the ITA completes the review. According to Husqvarna, the ITA had a clear, statutory duty to complete its review 180 days after issuing the preliminary results, and the company has a right to an 8.5 percent cash deposit rate after having been found to be a separate rate respondent. Furthermore, it said, it has no other remedy to the injury its 164.09 percent AD rate is causing.
CIT, however, citing the appeals court’s recent rulings in Hitachi and Norman G. Jensen, said that because 16 USC 1675(a)(3)(A) contains no consequence for failure to meet the 180 day deadline, the deadline is not mandatory, and the ITA therefore has no clear duty to complete its review in that time period. Furthermore, it said, Husqvarna had no right to a provisional cash deposit rate because the ITA has no established right to implement a provisional rate. Finally, suspension of liquidation of entries of Husqvarna’s sawblades, which is already in place, is adequate remedy because the ITA will refund excess cash deposits once duties are assessed upon publication of the final results, CIT said.
(Husqvarna Constr. Prods. North America et al., v. United States, Slip Op. 12-150, dated 12/06/12, Judge Eaton)
(Attorneys: John Greenwald of Cassidy Levy for plaintiffs Husqvarna Construction Products North America and Husqvarna (Hebei) Co., Ltd.; Stuart Delery for defendant U.S. government.)