1 Slip Op. 03-147 UNITED STATES COURT OF I NTERNATIONAL

TRADE

____________________________________ : J.S. STONE, INC., : : Plaintiff, :

: Before: WALLACH, J udge v. : Court No.: 00-06-00263 : THE UNI TED STATE S, : : Defend ant. :

: ____________________________________: [Plaintiff’s motion for summary judgment is denied. De fendant’s cross-motion for summary judgment is granted.] Decided: October 31, 2003
Steven R. Sosnov , of Sosnov & Associates, for Plaintiff. James A. Curley , Commercial Litigation Bra nch, Civil Division, Department of Justice.

OPINION WALLACH, Judge. I. Prelim inary Stat ement This matte

r is befo re the c ourt on cr oss-motion s for summa

ry judgmen t pursuan t to USCIT R. 56. Plaintiff, J.S. Stone, Inc. (“Stone”), see ks a refund of antidumping duties for the difference between the ca sh deposit rate it received and the published rate deter mined for Sinochem International Chemicals Corp. (“SI CC”) in Sebacic Acid Fr om the Peop le’s Repu

blic of China; Final Results of Antidumping Duty Administrative Review , 63 Fed . Reg. 4 3,373 (Aug. 13, 1998). Plaintiff originally br ought this action claiming jurisdiction under 28 U.S.C. § 1581(a)1 Plaintiff stated that “[t]he parties are in seeming agre ement that there is no jurisdiction

under 28 U.S.C. sec. 1581(a). There are no Customs decisions to protest.” Plaintiff’s Opposition to Defendant’s Cross-Motion for Summary Judgment (“Plaintiff’s Opposition”) at 3.

2 The United States Customs Service was renamed effective March 1, 2003, and is now organized as the United States Bureau of Customs and B order Protection. See Homeland Security Act of 2002, Pub. L . 107-296, § 1502, 116 Stat. 2135, 2308-09 (2002); Reorganization Plan for the Department of Homeland Security, H.R. Doc. No. 108-32 (2003). 2 and (i) (1994), but later conceded that the cour t lacked jurisdiction under § 1581(a). 1 Defendant challenges the jurisdiction of the c ourt. Additionally, Defenda nt claims that the Department of Commerce (“Commerce”) properly issued a

ntidumping duty instructions to United States Customs Service 2 (“Customs”), which assessed antidumping duties on Plaintiff’s entries at the cash deposit r ate. Fo r the for

egoing reasons , the cour

t has juris diction pu

rsuant to 28 U.S.C. §1581(i) and gr

ants Def endant’ s Cross-Mo tion for Su mmary Judgment.
II. Background On July 19, 1993, U

nion Camp Co rporation filed a petition w

ith Commerc e and the

ITC, alleging that sebacic ac id was being sold at prices below fair marke t value to the detriment of the domestic industry. See Initiation of Antidumping Duty Investigation; Sebacic A cid from the People’s Republic of China , 58 Fed. Reg. 43,339 (Aug. 16, 1993). Af ter investigation, it was determined that Union Camp’s allegations had merit and Commerce published a n antidumping duty order on seba

cic acid from the People’s Republic of China (“PRC”). Antidumpin g Duty Order: Se bacic A cid from t

he People ’s Republi c of China (PRC) , 59 Fed. Reg. 35,909 (July 14, 1994). Subsequent to the order, Commerce and the I TC conducted administrative reviews for shipments of sebacic acid from the PRC for the periods of July 13, 1994 through June 30, 1995;3 The notic e stated that
Inaccord ance wi th section 351.213 of the regulations, an interested party as defined by section 771(9) of

the Act may re quest in writing that the Secretary conduct an administrative re v iew. The Departm ent has c

hange d its require ments for requesting

reviews for coun tervaili ng duty orders. Pursuant to 771(9) of

the Act, an interested party must specify the individual producers or exporters covered

by the order or suspension agreement f or which they a

re requesting a review . . . . Therefore, for both antidumping and counte rvailing duty revie ws, the inter ested party must spec ify for which individual produc ers or e xporters covered by an antidumping finding or an antidumping or countervailing duty

order it is requesting a review, and the requesting party must state why it desires the Sec retary to review those particular p rodu cers or exporte

rs. Notice, 62 Fed. Reg. at 38,973. 3 Jul y 1, 1995 t hrough June 30, 19 96; J uly 1, 19 96 th rough J une 30 , 1997 ; and J uly 1, 19 97 th rough June 30, 1998 (“administrative review periods”). Plaintiff imported sebacic ac id from SICC on October 4, 1996, November 4, 1996, and Decembe r 9, 1996, and deposited the estimated antidumping duties on the entries with Customs. At the time of importation, the Plaintiff’s estimated duty rate w as 43.72% ad valorem . On July 21, 1997, Commerce published a notice of opportunity to request administrative re view of its antidumping order covering seba cic acid from the PRC for the period of investigation (“POI ”) from July 1, 1996, through June 30, 1997. 3 Antidumping or Countervailing Duty Order, Finding, or Suspended I nvestigation; Opportunity To Request Administrative Review , 62 Fed. Reg. 38, 973 (July 21, 1997) (“Notic e”). Un ion Camp filed a petition with Commerce and the United States Inter national Trade Commission (“ITC”) requesting an administrative review of SI CC. Additionally, SICC reque sted an administrative review. As part of the review, SICC was r equired to report all of its sales of sebacic acid. Plaintiff4 Pursuant t o 19 U.S.C. § 1677(9)(

A) (1994 ) an inte

rested p arty

is (A) a foreign manufacturer , producer, or exporter, or the United States importer, of subject merchandise or a trade or business association a majority of the members of which are producers, exporters, or importers of such merchandise.

5 The in struc tion s for r eport ing sal es dat a given to th e exp orter s for J uly 1, 19 95, t hrough June 30, 1996, and July 1, 1996, through June 30, 1997, were the same. See Plaintiff’s Motion for Summary Judgment Pursuant to CI T Rule 56 (“Plaintiff’s Motion”) at 7. 4 neither requested an administrative review as a n interested party

nor participated in the review. 4 SICC did not report its sales to Plaintiff in its questionnaire responses for this administrative review. 5 As a consequence, Commerce did not review SI CC’s sales of sebacic acid to Plaintiff and SICC’s sale prices to Plaintiff were not use d by Commerce in computing the .11% dumping rate for SICC. On April 9, 1998, Commerce published the Preliminary Results of its administrative review in Sebacic Acid From the People's Republic of China; Preliminary Results of Antidumping Duty Administrative Review , 63 Fed. Reg. 17,367 (Apr. 9, 1998) (“Pre liminary Results”). On August 13, 1998, Commerce published its final results which covered four e xporters including
SICC. Sebacic

Acid Fr om the Peop le’s Repu

blic of Chi

na; Fina l Results of

Antidumpin

g Duty Administrative Review , 63 Fed. Reg. 43,373 (Aug. 13, 1998) ( “Final Results”).
On Dece mber 17, 1 998, Comme

rce sen t liquidati on instructions to Cust oms. Customs was infor med that su spension o f liquidat ion was lif

ted and e ntries of sebacic acid sold by SI CC to the four importer s it identif

ied durin g the re view wer e to be liq uidated a t the expor

ter spec ific antidumpin

g duty rate. Com

merce s ent anoth er set of

liquidatio n instruc tions to Cust oms on Apr

il 28, 1999, instructing Customs to liquidate Plaintiff’s entries at the cash deposit or bonding rate.5

Subseque ntly , on June 9, 1 999, SI CC sent a le tter to Comm

erce st ating th at throug

h its “carelessness” it had forgotten to r eport sales of sebacic acid to J.S. Stone. Plaintiff’s Statement in Response to Defendant’s Statement of Material Facts a t para. 8. Thereafter, on June 18, 1999, Customs liqu

idated Pla intiff’s three e ntries an d assesse d anti-du

mping dut

ies at the cash dep osit rate of 43.72% ad valorem . Commerce then sent a letter to Plaintiff, dated September 2, 1999, explaining why Plaintiff’s entries w ere liquidated at the cash deposit rate. Plaintiff protested the assessment of the antidumping duties under 19 U.S.C. § 1514(a) and its protest was denied.
III. Jurisdiction Federal courts determine their own jurisdiction. Williams v. Sec’y of Navy , 787 F.2d 552, 557 (Fe d. Cir. 198 6). A “me re rec itation of

a basis f or jurisdi ction, by

either a party or a cour t, cannot be controlling: federal courts ar e of limited jurisdiction, and may not alter the sc ope of either their own or another courts’ statutory mandate.” Id. In this case, the Plaintiff bears the burden of demonstrating that jurisdiction exists because the Defendant c hallenges the jurisdiction of the court. See Hilsea Inv. v. Brown , 18 C.I .T. 1068, 1 070 (CI T 1994). H owever , it is also incumben t upon the c ourt to ind

epende ntly assess th e jurisdic

tional ba sis for ca ses that c ome before it. See Ad Hoc Comm. v. United States , 25 F. Supp. 2d 352, 357 (CIT 1998).
A. Jurisdiction is Barred Under 28 U.S.C. § 1581(a) When an interested party

wants Commerce to assess the actual rather than the e stimated dumping rate, it may

request administrative review of the duties under section 751 of the Tr ade Agreements Act of 1979 (“1979 Act”). See Mitsubishi Elecs. Am. v. United States , 44 F.3d 973, 976-77 (Fed. Cir. 1994). If no request is made, Commerce instructs Customs to assess duties at6 For examp le, in Xerox Corp. v. United States , 289 F.3d 792 (Fed. Cir. 2002) (“ Xerox

II ”), the Federal Circuit held that when a plaintiff’s goods are fac ially outside the scope of a n antidumping duty order , a scope determination by Commerce and participation in the antidumping review were unnece ssary pre dicates to a challenge of Customs imposition of antidumpin

g duties

. The Federal Circuit explained that where “the sc ope of the antidumping duty order is unambig

uous and undisputed, and the goods clearly do not fall within the scope of the order, misapplication of the order by Customs was properly the subject of a protest” under 19 U.S.C. § 1514(a)(2) and reviewable by the CIT under 28 U.S.C. § 1581(a). Xer ox II , 289 F.3d at 795. Thus, misapplication of an antidumping order or the erroneous imposition of antidumping duties by Customs may

be protested and suit brought before the cour t pursuant to § 1581(a). Id. 6 the estimated rate. However if an administrative review is conducted, Commerc e issues its final results a nd direc ts Customs to c ollect the appropr iate anti dumping d

uties. The 1979 Act transferred the administration of the antidumping la ws from the United States Treasury

Department to Commerce. Comm. To Preserve Am. Color Television v. United
States , 706 F .2d 15 74, 15 77 (Fed . Cir . 1983 ); Reo rg. Pl an No. 3 of 19 79, §5 (a)(1) (c), 44 Fed. R eg. 69,273, 69 ,275 (De c. 3, 1979 ). Customs’ role in liq uidating antidumpin

g duties is minister

ial. Customs has no authority to modify Commerce’s determination and may liquidate entries only at the rate set by

Commerce. See Royal Business Mac hs., Inc. v. United States , 1 CIT 80, 87 & n.18 (1980). Plaintiff protested the assessment of antidumping duties under § 1514(a), and upon de nial of the protest, brought suit under § 1581(a) and (i). Section 1514(a) is limited to “decisions of the Customs Service.” Because Customs has no authority to modify Commerce’s antidumping determination, only in limited circumstances ma y a plaintiff cha

llenge Customs’ imposition of antidumpin

g duties on its entr

ies. 6 In this case, Commerce sent liquidation instruction to Customs, which then imposed antidumping duties as directed by Commerce as part of its ministerial functions. The court has no7

jurisdiction pursuant to § 1581(a) for it was Commerce’s instructions, rather than an inde pendent decision by Customs, which determined the a ntidumping rate.
B. Jurisdiction Does Not Lie Under 28 U.S.C. § 1581(c). Defendant claims that Plaintiff functionally challenges the results of the administrative review b ecause

it contest s the appl ication o r inapplic ability of the de terminat ion’s re sults to its entries, a situation, it claims, where jurisdiction is proper only under § 1581(c). Under § 1581(c), the court has exclusive jurisdiction over any civil action commenced under section 516A of the Tariff Act of 1930. Pursuant to 28 U.S.C. § 2631(c) “[a] civil action contesting a deter mination listed in 516A of the Tariff act of 1930 may be commenced in the Court of Inte rnational Trade by any intereste d party who wa s a party to the proc eeding in connection with which the matter arose.” Defendant arg

ues that Plaintiff is precluded from challenging the results of the antidumping determination because, although it qualified as a n interested party , it did not particip ate in the

administr

ative pr oceedin gs. The gov ernment ’s position in this cas e is similar

to the cla im it made in Xerox Corp. v. United States , 118 F. Supp. 2d 1353, 1354 (CIT 2000) (“ Xero x I ”). In Xero x I , the government claimed that the only method for parties to determine whether their goods we re part of antidumpin

g invest igation was throu

gh a sc ope dete

rmination . This cou

rt stated that the I TA has an

d has had regula tions . . . e

nabling importer s like Xer

ox to file applications to determine whether particular products ar e within the purview of existing antidumping-duty order s. Also, Congress has provided for judicial review of such determinations . . . . Given, this approach, and the fact that Xe rox did not follow it, the defendant takes the position that this court has no jurisdiction to grant any relief – pursuant to section 1581(a) or otherwise.
Xero x I , 118 F. Supp. 2d at 1354.8

The CIT agr

eed with the government’s chara cterization that the plaintiff in Xero x Icould have pa rticipat ed in the a

dministra tive review in ord

er to ens ure that its goods were no t facial ly part of the antidumping determination. Howeve r, the Fe deral Cir

cuit rev ersed a

nd held tha

t a
scope determ inati on was not t he sol e appro priat e meth od by whic h a part y could ch allen ge Customs’ application of a dumping order to its goods when the party believed that Customs had misapplied the antidumping order. See Xer ox II , 289 F.3d at 795. Similar to the plaintiff in the Xerox cases , J.S. Stone failed to participate in the antidumping review. After the final results of the re view were published, the government then made a decision regarding the amount of antidumping duties the parties owed. Commerce then determined which

dumping r

ate appl ied to Plain

tiff’s e ntries an d sent liqu

idation ins tructions

to Customs. Defendant claims that the only method that Plaintiff has of e nsuring that the proper dumping rate is applied to its goods is to participate in the antidumping review. During oral argument, Def endant tried to distinguish the Xerox cases on two points. First, Defendant claimed that the cases were distinguishable because they involved a dec ision by Customs, not Commerce. Second, Defendant stated that the jurisdiction challenged by the government in the Xerox cases w as § 1581( a) and th e gove rnment ha

d claimed that the o nly appropriate jurisdiction lay under § 1581(c), while here Plaintiff claims jurisdiction pursuant to § 1581(i) and the government aga in claims that the only proper jurisdiction lies under § 1581( c). Because it is the substance and the nature of an action rather than its form that control jurisdiction, see Williams v. Sec’y of Navy , 787 F.2d at 557, these distinguishing factors in no way lessen the

basic teaching of Xer ox II - that the government mistakenly characterized an action as solely challeng eable through an administrative review a nd subject to § 1581(c) jurisdiction,9

when another means of challenging the government’s actions was available. Plaintiff’s claim is thus best characterized as a challeng e to Commerce’s instructions to Customs, rather than as a challenge to the final results of the re view. Like the plaintiff in the Xerox cases, J.S. Stone could hav e partic ipated in the admin

istrative review a s an inter

ested pa rty . That it did not, does not prevent the court from reviewing Commerce ’s instructions to Customs. Commerce held that SICC’s dumping rate did not apply to Plaintiff because it did not participate in the review. Plaintiff’s challenge of Commerce’s instructions to Customs, and the applicability of the Federal Registe r results to its entr

ies, take s the matte

r out of th e umbrel la of §158 1(c) jur isdiction b ecause § 1581(c) covers challenge s to the results of antidumping determination. Since the determination is not cha llenge d, Defe

ndant er rs in its be lief that

Plaintiff could only

be affo rded re lief unde

r this subsection.
C.

The Court Has Jurisdiction Pursuant to 28 U.S.C. § 1581(i). The Court

of In ternational Trad

e is an Ar ticle I II court of limited jur

isdiction a

nd “is empowered to offer complete relief in all actions within its jurisdiction except where particular forms of relief are explicitly barred.” Krupp Stahl AG v United States 4 CIT 244, 247 (1982). Section 1581(i) gives this court “broad residual authority over civil actions arising out of federal statutes governing import transactions. . . .” Conoco, Inc. v. United States Fore ign-Trade Zones Bd. , 18 F.3d 1 581, 1588 ( Fed. Cir . 1994); 28 U.S.C. § 158 1(i). Section 1581( i) provides that [T]he Court of International Trade shall have e xclusive jurisdiction of any civil act ion comme

nced ag ainst the U

nited State s, its ag encies, or its officers, that arises out of any law of the United States providing for-- (1) rev enue fr

om imports o r tonnag e;10 (2) tariffs, duties, fees, or other taxes on the importation of mercha ndise for reasons other tha n the rai sing of r

evenue ; (3) embargoes or other quantitative re strictions on the importation of merc handise f

or reas ons other

than the protection of the pu blic health or safety ; or (4) administration and enforcement with respect to the matters referred to in paragr

aphs (1)-(3) of this subsection and subsections (a)-(h) of this section. This subsection shall not confer jurisdiction over an antidumping or countervailing duty

determination which is reviewable . . . by the Court of International Trade

under section 516A(a) of the Tariff Ac t of 1930 . . . . 28 U.S.C. § 1581(i). The legislative history

regarding section 1581(i)( 4) indicates that this court is not “prohibited from entertaining a civil action relating to an antidumping proceeding so long a s the action does not involve a challenge to a deter mination specified in 516A of the Tariff Act of
1930.” House Judiciary Committee in H.R. Rep. No. 96-1235, at 48 (1980), reprinted in 1980
U.S.C.C.A. N. 3729, 3 760; see Ceramica Regiomontana, S.A. v. United States , 5 CIT 23, 25-28 (1983). T hus, Cong

ress cle arly

envisione d “occa sions whe n an aspe ct of an a

ntidumping

duty determination might fall within the court’s jurisdiction under section 1581(i).” Roy al Busine ss Machs., Inc. v. United States , 69 CCPA 61, 74 (1981). However, in order to “invoke jurisdiction under § 1581(i), jurisdiction under the other provisions of § 1581 must be unavailable or manifestly inadequa

te.” Associacao Dos Industriais de Cordoa ria e Redes v. United States , 17 CIT 754, 757 ( 1993); see Juice Farms v. United States , 68 F.3d 1344, 1346 (Fed. Cir. 1995). Commerce’s instructions to Customs to liquidate Plaintiff’s entries are not part of the antid umpi ng dete rmina tion . The co urt pr eviou sly illu strat ed the dist incti on bet ween a c halle nge11

to Commerc e’s liquid

ation instr uctions a nd a cha llenge to the ant idumping determination in Consolidated Bearings Co. v. United States , 16 6 F. Su pp. 2d 5 80, 583 (20 01) . In Consolidated Bearin gs , an impor

ter brou ght an a ction cha llengin g Commer

ce’s liqu idation ins tructions

to Customs. Id. The cour

t stated th at “Comme

rce’s li quidation

instructi ons . . . ar

e not subje ct to review under subsection 1581(a) beca use Commerce, not Customs, is the agency responsible for issuing the instructions and determining the amount of antidumping duty to be assessed.” Id. Additionally, “Commerce’s liquidation instructions . . . are not reviewable under subsection 1581(c) because they

were not part of the final results . . . . Rather, such instructions are issued after relevant final determinations are published.” Id. Pursuant to 19 U.S.C. § 1516a(1) (1999), an interested party who is a party to the proceeding in connection with which the matter a rises may commenc e an action in the United States Court of International Trade by filing conc

urrently a summons and c omplaint. Judicial review in antidumping duty proceedings must commence within 30 day s after the date of publication in the Federal Register of a f inal determination by the administering authority or the Commission u

nder sec tion 1675( c)(3) o f this title . 19 U.S.C. § 1516a(1 ). As the c ourt in
Cons olid ated Be arings explained, Commerce’s liquidation instructions come after the determ inati on and may fall o utsi de the time perio d that § 1581 (c) per mits conte stin g a determination by Commerce

. Cons olid ated Be arings , 166 F. Supp. 2d at 583. Commerce’s charac terizatio n would ef

fective ly p revent p arties f rom seek ing red ress fro m mistakes

made in its liquidation instructions to Customs when those instructions are sent after the final determination is published and beyond the time permitted for review under § 1581(c). Were the cour t to accept the Defendant’s argument, par ties would be unable to challenge an err or in Commerce’s7 Section 2640(e) provides that “In a ny civil action not specified in this section, the Court of International Trade

shall review the matter as provided in section 706 of title 5.” 5 U.S.C. § 70 6 (2000) s tates tha t: To the exte

nt neces sary

to decision and whe

n presen ted, the r eviewing court sha ll decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall-- (1) compel a

gency action un lawfully withheld or unrea sonably delayed; a

nd (2) hold unlawful and set aside agency action, findings, and conclusions found to be-- (A) arbitra

ry , capric ious, an a

buse of di scretion , or other wise not in accordance with law; (B) contrary

to constitutional right, power, privilege, or im mu ni ty; (C) in excess o f statutor y ju risdictio n, author

ity, or limitati ons, or short o f statutor

y r ight; (D) without observance of procedure re quired by law; (E) unsuppor

ted by substantia

l evidenc e in a ca se subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agenc

y hearing provided by statute; or (F) unwarranted by

the facts to the extent that the facts are subject to trial de n ovo by the revi ewing c ourt.
In ma king the foreg oing determinat

ions, the c ourt shal l review the whole

record or those parts of it cited by a pa

rty, and due a

ccount shall be taken of the rule of prejudicial er ror. 12 liquidation instructions under § 1581(a),(c) or (i). This court declines to so hold. The court has jurisdiction to review Commerce’s liquidation instructions to Customs pursuant to 28 U.S.C. § 1581(i).
IV. Applicable

Legal Standa rds The standard of review applicable to civil actions broug ht pursuant to § 1581(i) is the same as for those actions brought under the Administrative Proce dure Act. See 28 U.S.C. § 2640(e) 7 ; Shakeproof Indus. Prods. Div. of I llinois Tool Works, Inc. v. United States , 104 F. 3d13

1309, 1312 (Fed. Cir. 1997). The court reviews an a gency ’s actions to determine whether they were “arbitrary

, capricious, or infected by prejudicial legal error.” Shakeproof , 104 F.3d at 1313. Under the arbitrary

and capricious standard, a reviewing court “must consider whether the decision was based on a consideration of releva nt factors and whether there has bee n a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 416, 28 L. Ed. 2d 136, 153, 91 S. Ct. 814, 824-825 (1971). Summary judgmen t is appro priate w hen “the pleading s, deposit

ions, answ ers to interrogatories, and admissions on file, together w ith the affidavits, if any, show tha t there is no genuin e issue a s to any

materia l fact an d that the moving pa

rty is entitle d to a judg

ment as a matter of law.” USCIT R. 56(c) . Rule 56 requires that the moving party produce evidence showing lack of any

genuine issue of material fact. Avia Group Int’l, I nc. v. L.A. Gear Cal., I

nc. , 853 F.2d 1557, 1560 (Fed. Cir. 1988). The inference s drawn from the underly ing facts are viewed in the light most favorable to the nonmovant. United States v. Diebold, Inc. , 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176, 177 (1962). The court does not “weig h the evidence and determine the truth of the matter,” but rather deter mines “whether there is a genuine issue f or trial.” Anderson v. Liberty Lobby , Inc. , 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986).
V. Arguments Plaintiff seeks a refund on the difference between the cash deposit rate it paid on antidumping duties and the rate determined for its exporter SI CC. It asks for a money judgment8 Section 2643(a)(1) provides that [t]he Court of International Tr ade may e nter a money judgment for or against the United States in any civil action commenced under section 1581 or 1582 of this title.” 14 pursuant to 28 U.S.C. § 2643(a)(1) (2000) 8 rather than reliquidation because its entries have already liquidated. Plaintiff does not challenge the agenc y’s determination, ra

ther, it argues that the final results published in the Federal Register ar e all that the law requires to establish its right to a ref und of an tidumping

duties an d that this r

ight ves ted upon p

ublication of the f

inal resu lts. Plaintiff’s Motion at 15, 17. Plaintiff claims that the court is authorized to enter a money judgment against the United States in any civil action commenced under § 1581. 28 U.S.C. § 2643(a)(1). Plaintiff’s Reply to Defendant’s Supplemental Brief at 5 (“Plaintiff’s Supplemental Brief”). Defendant argues that there is no merit to Plaintiff’s claims because Plaintiff’s entries

were no t review ed by

Commere d

uring th e antidum

ping determinat

ion and the

refore the “all others” rate applies to Plaintiff’s entries. Defendant’ s claim that this court lacks jurisdiction, because the determination was resolved administratively , is resolved by the cour

t’s grant of §1581(i) jurisdiction. Defendant also claims that after liquidation of Plaintiffs entries, no remedy is available to the Plaintiff. Defendant’s Supplemental Brief Submitted in Accorda nce with the Court’s Order of June 13, 2003 at 5 (“Defendant’s Supplemental Br ief”).
VI. Discussion
A. Commerce ’s Liquidation Instructions to Customs and Customs’ Liquidation of Plaintiff’s Entries Were in Accordance with the Law Commerce’s liquidation instructions to Customs instructed it to liquidate Plaintiff’s entries15

at the cash deposit or bonding rate. I t had previously instructed Customs to liquidate the entries of the importers identified by SI CC at the rate published in the Final Results. Plaintiff argues that because “[t]here is no statutory or regulatory

authority for the De

partment of Commerce to issue liquidation instructions to the Customs Service that are inconsistent with the final published results of the administrative review,” it should have received SI CC’s published rate. Defendant “admits there is no statutory or regulatory

authority for the De

partment of Commerce to issue liquidation instructions to the Customs Service that are inconsistent with the final published results of an administrative review, but avers that Commerce did not issue liquidation instructions here that were inconsistent with the final published results.” The Government say s that having slept on its rights, Plaintiff is precluded from claiming SI CC’s rate. Antidumping duties are “assessed when Commerce de termines that a class or kind of merchandise is being, or is likely to be, sold in the United States at less than its fair value and the ITC de termines that the im

portation of such me

rchandi se is cau sing or t

hreate ning to c ause material injury to a United States industry , or is materially re

tarding the establishment of an industry in the United States.” INA Walzlager Schae fflerkg KG v. United States , 108 F.3d 301, 304 (Fe d. Cir. 199 7). An ad ministrati ve revie w of an a ntidumping

order is gover ned by 19 U.S.C. § 1675 (19 94), whic

h provide s: (1) In Gener

al At least once during each 12-month period be ginning on the anniversary of the date of public ation of . . . an anti dumping d uty order un der this su

btitle or a finding under the Antidumping Act . . . the administering authority, if a request for such a review has bee n received and after publication of notice of such r eview in t he Fede ral Register, sha

ll– (B) review, and determine (in a ccordance with parag

raph (2)), the amount of any antidumping

duty, . . .16 and shall publish in the Federal Register the results of such r eview, together with notice of any duty

to be assessed, estimated duty to be deposited, or investigation to be resumed. (2) Determination of antidumping duties (A) In ge neral For the p urpose of parag raph (1) (B), the

administe

ring au thority shall determine– (i) the normal value and export price (or constructed e xport price) of each entry

of the subject merchandise, and (i i) th e d um pi ng ma rg in fo r e ac h s uc h e nt ry. (C) Results of determinations The determination under this paragraph sha ll be the basis for the assessment of countervailing or antidumping duties on entries of merchandise covered by

the determination and for deposits of estimated duties. Id. Should “an interested party [want] Commerce to assess duties at the actual, rather than the estimated [rate], it may request administrative re view of the duties under section 751 of the 1979
Act.” Mitsubishi , 44 F.3d at 976-77. Pursuant to the implementing regulation for a dministrative reviews, 19 C.F.R. 351.212 (1998), Commerce calculates an a ntidumping assessment rate for each importer of the sub

ject mer chandise covere d by

the revi ew. Howe

ver, if a n antidump ing rev

iew is not requested, antidumping duties are collected on the unspec ified merchandise in the amount of the cash deposit paid at the time of importation, which is published as the “all others” rate in the Federal Register. See Id. ; see also Floral Trade Council v. United States , 822 F. Supp. 766, 768-71 (CIT 1993). Section 35 1.212(c )(2) re quires th at Commer ce instru ct Customs to

assess antidumpin

g duties in accor dance w ith § 351.21 2(c)(1 ), automa tic asses sment, at t

he rate equal to the rate equal to cash deposit of estimated antidumping duties require d at the time of entry. Normally, the only

means an interested party has of ensuring that it receives the actual17

antidumpin

g duty rate is th rough p articipa

tion in the a

ntidumping

review. Plaintiff

did not cla

im it could not have participated in the administrative review as an intere sted party; rathe r it says that “participation [in an administrative review] would be cost prohibitive.” Plaintiff’s Opposition at 3; Defen dant’s Re ply at 2. I f an impor

ter dec ides not to

particip ate in an

administr

ative re view, it bears the risk that Commerce may err in calculating the dumping marg in. The court is not unsympathetic to the plig ht small or financially strained busine sses may face in choosing betwee n partic ipating

in a costly

administr

ative re view, or choosing not to particip ate, and

thus, risk receiving an u

ncontest able and perhaps errone ous rate . Small businesses may fac e a dilemma where they can neither afford to participate in an a dministrative review n or to pay an erro neous an

tidumping

rate. Ne verthel ess, the c ost-bene fit analy sis and ris k assessment involved is one an importing business must make. Stone also claims that SICC reported all its sales to Commerce in its 1994-1996 questionnaire re sponses. T hus, Plaint

iff arg ues Commer

ce knew of the co ntract a

nd chose to ignore it. Plaintiff’s Statement in Response to Defendant’s Statement of Material F acts. Defend ant aver red in its Su

pplement al Reply Brief t o Plaintiff

’s Opposit

ion to the Cr

ossMotion for

Summary

Judgment t

hat SI CC did not re

port to Comm erce a

ny s ales of Se

bacic A cid to Plaintiff during the 1994-1995 or 1995-1996 reviews and provided a D eclaration by the import compliance specialist, Brandon Farlande r, who reviewed the relevant administrative re cords. See Supplemental Declaration of B. Farlande r. Plaintiff failed to submit competent evidence contravening that De claration. It alleg ed, without sup

porting proof, th at Defe

ndant wa s aware

of Plaintif

f’s entr ies. Plain tiff’s c laim is insuffic ient for t

he court to find a g enuine is sue of ma terial f act.18

The court must consider whether the age ncy’s dec ision was based on a consideration of the rele vant factors and w

hether t here ha s been a c lear er

ror of ju dgment. In its

letter da ted to Plaintiff, September 2, 1999, Commerce said that “because SI CC’s sales to J.S. Stone are unreviewed sales, they

are subject to automatic liquidation at the cash deposit rate. See 19 C.F.R. section 3 51.212(c ).” The letter f urther s tated tha

t Although you c laim the respondent would have corrected the proble m had the Department advised the respondent of the omission earlier, it is the respondent’s obligation, during the course of the proceeding to re port all sales. If y

ou wish to avoid automatic assessment or the use of adverse inference s in the future, you or the producer/exporter may

request an administrative antidumping review, and follow the procedure s to have your sale s reviewed by the Depa

rtment

. See 19 C.F.R. s ection 35 1.212(c )(2); see also 19 C.F.R. sections 351.102(b) and 351. 301(c)(1). Defendant’s Op positio n, Exhib it F. The statu tory framew ork for a

dministra tive reviews anti cipates

that ther e will be c ases in which a company

makes the required cash deposit of antidumping duties on its entries and y et requests no administrative review. When this occurs, the cash deposit rate ultimately becomes the rate at which the company is assessed antidumping duties. See Federal-Mogul Corp. v. United
States , 822 F. Supp. 782, 787-88 (CIT 1993). The F ederal Circuit has stated that “there is no requirement that assessment rates or duties be determined f or each individual entry ,” Thai Pineapple Canning Industry Corp. v. United States , 273 F.3d 1077, 1086 (Fed. Cir. 2001). If entries are

unknown to Commerce because the exporter failed to disclose them during an antidumping review, Commerce may reasonably

determine that the exporter specific rate does not apply. “It is the respondent’s obliga tion to supply Commerce with accur ate information,” Accai Speciali Terni S.P.A. v. United States , 142 F. Supp. 2d 969, 982 (CIT 2001), and SICC’s failure to disclose

all of its s ales pre

vented Co mmerce f

rom includ

ing Plain tiff’s e ntries in i ts9 It may be, that if SICC breached a duty to Stone, an answer may lie in the common law. That que stion, how ever, is not now be fore this

court. 19 calcula tions. 9 Indeed, permitting Plaintiff to take a dvantage of an exporter specific r ate when its entries

were no t review ed would l ead to an absurd r esult. De fendant

points out that were

the cour t to hold for Plaintiff, exporters whose merchandise is subject to an antidumping order a nd who are respondents in an administrative review might risk withholding sales information fr om Commerce in order to gain a commercial advanta ge by awaiting the review’s outcome. Should it result in an antidumping duty rate

lower than the cash deposit rate, the importer could then come forward and claim that its entries, although not examined by Commerc e, were nevertheless entitled to the lower rate. Converse ly, if the re view res ult in a hig

her expor ter spec ific rat

e than the cash dep osit rate, the importer could allow its entries to be deemed liquidated at the ca sh deposit rate. Statutes must be construed in light of their purpose. See Haggar Co. v. Helvering , 308 U.S. 3 89, 394, 60 S. Ct. 337, 338 -339-40, 84 L. E d. 340, 344 (1940); see also Sharp Elec. Corp. v. United States , 124 F.3d 1447, 1449 (Fed. Cir. 1997). This resu lt is not one

that Cong

ress cou ld have r easonab ly intended.
Commerce

adequa tely explained

its ration ale for

instructi ng Custom s to liquida

te Plaintiff ’s entrie s at the c ash depo sit rate i n its Septe

mber 2, 19 99, lette

r. Stone’ s failure

to particip ate in the

review, and SI CC’s failu re to disc lose its sa

les to Stone , permit Co mmerce t o instruct Customs to liquidate the entries at the cash deposit rate.20 B. Plaintiff Received Adequate Notice of Its Opportunity to Participate as an Interested Par ty in the Administrative Review Plaintiff claims that there was no way an importer could determine from the preliminary or final re sults publis hed in the Feder al Regis ter that i

t was not in

cluded in the antid umping ma

rgin determinations. Pla

intiff’s Reply at 18. To s

upport its c laim, Stone

cites Transcom, Inc., v. United States , 182 F.3d 876 (Fed Cir. 1999) in which the Federa l Circuit explained that “[w]hat the statut ory and reg ulatory notifica tion provi sions req

uire is tha t any reasona bly informed party should be able to determine, from the published notice of initiation read in light of announc ed Commerce Department policy , whether particular entries in which it has an interest may be affected by

the administrative review.” Id. at 882-83. The court notes that in Transcom Inc. , the Federal Circuit also said:

“The not ificatio n requir

ement in th e statute

[19 U.S.C. § 1 675] and the Customs regulations serves to notify any intereste d party that the antidumping rate on goods obtained from exporters named in the notice of initiation for an administrative review may

be affected by

the outcome of that review. Thus, [Plaintiff] and other importers knew at the time of the notice of initiation that any bearings they purchased for importation from one of the named exporters would be subje ct to a revised antidumping rate for a particula r review period. So apprised, [Plaintiff] or the other importers

could part

icipate inthe admin istrative review inan effort to ensure th at the cal

culation o f antidumpi

ng duties o n those pro ducts was c orrect. ” Id. at 880 (emphasis added). The notice Plaintiff seeks is not what the law requires. The mistake lies in its argument that it should receive notice that its entries might not be included in the review. Err ors may be made during the course of an antidumping review, which is precisely why interested pa

rties are allowed to participate and comment during Commerce’ s determinations. The law requires that the Plaintiff receive notice of the ty pes of goods and exporters under review. Id. There w as notice in10 “[A] court shall award to a prevailing party other than the United States . . . expenses . . . in any civil action (other than cases sounding in tort), including procee dings for judicial review of agency action, brought by

or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances exist that make an award unjust.” 28 U.S.C. § 2412(d)(1)( 4). 21 the Federal Register that importations from SI CC were subject to a revised antidumping rate. Plaintiff had adequate opportunity to participate in the review, but chose not to do so. I t did not receive the ty

pe of inadequate notice found in Transcom, Inc. , where the part ies were unable to determine if their entries might be affec ted by the administrative re view. See id. at 882-83.
C. Plaintiff is Not Entitled to Attorney’s Fees and Costs Under the Equal Access to Justice Act. The Equal Access to Justice Act, 28 U.S.C. §2412 (2000) (“EAJA”), “permits judicial award of the costs as specified in 28 U.S.C. § 1920 in any civil action brought by

or against the
Un it ed St at es ” t o a pr ev ai li ng pa rt y. 10 United States v. Hitachi Am., Ltd. , 101 F. Supp. 2d 830, 832 (CIT 2000). A “preva iling party”

is one who “succeed[s] on any sig nificant issue in litigation which achieves some of the benefit the parties soug ht in bringing suit.” Hensley v. Ec kerhart , 461
U.S. 424, 4 33 (19 83) (q uoti ng Nadeau v. Helgemoe , 581 F.2d 275, 278-79 (1st Cir. 1978). A prevail ing par

ty’ s applica

tion may be denie d if “the

position of

the Unite d States wa s substant ially justified or that sp ecial c ircumsta

nces mak e an awa rd unjust. ” 28 U.S.C. § 2412(d) (a)(A) ; United States v. Hitachi , 101 F. Supp. 2d at 832. Because Plaintiff has not prevailed, its claim for EAJA is denied.22 VII. Conclusion Plaintiff received proper notice that its entries were subject to administrative review. Commerce adequately

explained its reasons for instructing Customs to liquidate Plaintiff’s entries at the ca sh deposit

rate in it s Septembe

r 2, 1999, letter. T

herefo re, Comme

rce’s d ecision to liquidate Plaintiff ’s unrep orted sa

les at the cash dep osit rate

after it s exporter

failed to disclose its sales permits Commerce to instruct Customs to liquidate its entries at the cash deposit rate.

_________________________ Evan J . Wal lach, Judge

Dated: October 31, 2003 New York, New York