The opinion
Slip Op. 13- 12
UNITED STATES COURT OF INTERNATIONAL TRADE
JSC ACRON,
Plaintiff,
v. Before: Timothy C. Stanceu, Judge
UNITED STATES, Court No. 11-00496
Defendant,
and
COMMITTEE FOR FAIR
AMMONIUM NITRATE TRADE,
Defendant-intervenor.
OPINION
[Granting defendant’s motion to dismiss an action challenging denial of changed circumstances
review]
Date: January 25, 2013
Daniel J. Cannistra and David C. Wolff, Crowell & Moring LLP, of Washington, DC, for
plaintiff JSC Acron.
Michael D. Panzera, Senior Trial Counsel, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, of Washington, DC, for defendant. With him on the brief
were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke,
Assistant Director. Of counsel on the brief was Mykhaylo Gryzlov, Office of the Chief Counsel
for Import Administration, U.S. Department of Commerce, of Washington, DC.
Valerie A. Slater and Margaret C. Marsh, Akin, Gump, Strauss, Hauer & Feld, LLP,
of Washington, DC, for defendant-intervenor Committee for Fair Ammonium Nitrate Trade.
Stanceu, Judge: Plaintiff JSC Acron (“Acron”) challenges the refusal of the International
Trade Administration, U.S. Department of Commerce (“Commerce” or the “Department”) to
Court No. 11-00496 Page 2
conduct, under section 751(b) of the Tariff Act of 1930 (“Tariff Act”), 19 U.S.C. § 1675(b)
(2006),1 a “changed circumstances” review of an antidumping duty order on imports of solid
fertilizer-grade ammonium nitrate (“subject merchandise”) from the Russian Federation.
Compl. ¶¶ 12, 17-18, 33 (Dec. 7, 2011), ECF No. 2. Acron, a Russian producer of solid fertilizer
grade ammonium nitrate, requested a changed circumstances review to obtain a reduction in the
253.98% cash deposit rate applicable to all imports of subject merchandise, a rate established
more than twelve years ago in the less-than-fair-value investigation. Id. ¶¶ 12, 17; Notice of
Final Determination of Sales at Less Than Fair Value; Solid Fertilizer Grade Ammonium Nitrate
From the Russian Federation 65 Fed. Reg. 42,669, 42,673 (July 11, 2000) (“Final
Determination”). Before the court is defendant’s motion to dismiss this action for lack of subject
matter jurisdiction. Def.’s Mot. to Dismiss for Lack of Subject Matter Jurisdiction
(Feb. 13, 2012), ECF No. 8 (“Def.’s Mot.”). The Committee for Fair Ammonium Nitrate Trade
(“COFANT”), defendant-intervenor, supports defendant’s motion to dismiss. For the reasons
stated below, the court grants defendant’s motion and will enter judgment dismissing this action.
I. BACKGROUND
In response to a petition by COFANT, Commerce initiated the antidumping duty
investigation on August 12, 1999. Initiation of Antidumping Duty Investigation: Solid
Fertilizer-Grade Ammonium Nitrate from the Russian Federation, 64 Fed. Reg. 45,236, 45,239
(Aug. 19, 1999). In its preliminary affirmative less-than-fair-value determination (“Preliminary
Determination”), Commerce calculated a preliminary weighted-average dumping margin for
1
Unless otherwise indicated, further citations to the Tariff Act of 1930 are to the relevant
portions of Title 19 of the U.S. Code, 2006 edition.
Court No. 11-00496 Page 3
only one Russian producer/exporter, JSC Nevinnomyssky Azot (“Nevinka”), which Commerce
preliminarily determined to be the only producer/exporter eligible to be assigned a separate rate.
Notice of Preliminary Determination of Sales at Less Than Fair Value; Solid Fertilizer Grade
Ammonium Nitrate From the Russian Federation 65 Fed. Reg. 1139, 1140-44 (Jan. 7, 2000)
(“Preliminary Determination”). In response to Nevinka’s request for separate rate status,
Commerce concluded that Nevinka qualified for such status, id. at 1143, having demonstrated
“the absence of de jure and de facto government control over export activities.” Id. at 1141. The
preliminary rate Commerce calculated for Nevinka was 264.59%, a rate Commerce also applied
to the “Russia-wide entity” comprised of all producers or exporters that failed to demonstrate the
absence of government control over their export activities. Id. (“Because the highest margin on
the record is the calculated margin, the Department is assigning this rate as the adverse facts
available Russia-wide rate.”). Nevinka’s rate was based on the Department’s nonmarket
economy methodology, under which Commerce determined surrogate values for factors of
production using Poland as the surrogate country. Id. In the Preliminary Determination,
Commerce stated that “on September 15, 1999, JSC Acron, which had notified the Department
of its shipment quantities and values, submitted a letter to the Department, stating that it would
not participate in the antidumping investigation on solid fertilizer grade ammonium nitrate.” Id.
at 1140. Commerce, accordingly, made Acron subject to the Russia-wide rate. Id.
In the Final Determination, Commerce concluded that imports of the subject merchandise
were being sold at less than fair value, calculated a weighted-average dumping margin of
253.98% for Nevinka, and, for the same reasons as were stated in the Preliminary Determination,
assigned that margin to the Russia-wide entity. Final Determination, 65 Fed. Reg. at
42,670-42,673. Commerce noted that it “included Acron in the Russian-wide entity because it
Court No. 11-00496 Page 4
failed to establish its entitlement to a separate rate.” Id. at 42,670. Subsequently, the U.S.
International Trade Commission (“ITC”) determined that the domestic industry had been
materially injured by reason of subject imports. Certain Ammonium Nitrate From Russia,
65 Fed. Reg. 50,719 (Aug. 21, 2000).
An affirmative ITC determination ordinarily would result in an antidumping duty order
and issuance of instructions to U.S. Customs and Border Protection (“Customs”) to collect cash
deposits at the rate assigned by Commerce in the less-than-fair-value investigation. See
19 U.S.C. § 1673d(c). Commerce did not issue an antidumping duty order, and did not instruct
Customs to collect cash deposits, because the governments of the United States and Russia, on
May 19, 2000, had entered into a nonmarket economy “suspension agreement” pursuant to
19 U.S.C. § 1673c(l), according to which the Russian government agreed to restrict export
volumes and ensure that subject exports were sold at or above agreed reference prices. 2 Final
Determination, 65 Fed. Reg. at 42,673; see also 19 U.S.C. § 1673c(f)(3)(B) (authorizing
Commerce to refrain from issuing an antidumping duty order while a valid suspension agreement
is in place).
In 2006 and 2011, Commerce conducted sunset reviews of the Order. In both reviews,
the Department reaffirmed the 253.98% cash deposit rate calculated in the Final Determination
and continued to link the Russia-wide entity to that rate. Final Results of Five-year Sunset
Review of Suspended Antidumping Duty Investigation on Ammonium Nitrate from the Russian
Federation, 71 Fed. Reg. 11,177, 11,178 (Mar. 6, 2006); Solid Fertilizer Grade Ammonium
2
The Department had suspended its investigation due to the suspension agreement but
subsequently resumed and completed the investigation, at the request of the petitioner. See
Suspension of Antidumping Duty Investigation: Solid Fertilizer Grade Ammonium Nitrate
From the Russian Federation, 65 Fed. Reg. 37,759 (June 16, 2000).
Court No. 11-00496 Page 5
Nitrate From the Russian Federation; Final Results of the Expedited Sunset Review of
Antidumping Duty Order, 76 Fed. Reg. 39,847, 39,848 (July 7, 2011).
On April 27, 2011, Commerce issued a notice (“Termination Notice”) informing the
public that the Russian government withdrew from the suspension agreement on March 3, 2011,
that an antidumping duty order on solid fertilizer grade ammonium nitrate from Russia (“Order”)
would enter into force on May 2, 2011, and that after such date liquidation would be suspended
and Customs would begin collecting cash deposits of 253.98% on entries of subject merchandise.
Termination of the Suspension Agreement on Solid Fertilizer Grade Ammonium Nitrate From the
Russian Federation & Notice of Antidumping Duty Order, 76 Fed. Reg. 23,569 (Apr. 27, 2011)
(“Termination Notice”).
On September 26, 2011, Acron, seeking a reduced cash deposit rate, filed its request that
Commerce initiate a changed circumstances review. Compl. ¶ 17 (citation omitted). Plaintiff’s
request stated that in light of “Russia’s graduation to market economy status, the original
determination [being] based on the absence of factual information and adverse facts available,
and Plaintiff’s sales at or above normal value for an extended period of time . . . [,] the cash
deposit rate calculated for Plaintiff no longer reflected commercial reality.” Id. ¶ 30. Commerce
denied this request by letter on November 7, 2011, finding that Acron’s entries during the
suspension agreement were not subject to suspension of liquidation or antidumping duties and
that Acron’s sales during the intervening 12 years, having been made under the suspension
agreement, “were not indicative of Acron’s current or future commercial behavior.” Id. ¶¶ 18,
28-29 (citations omitted).
Plaintiff commenced this action on December 7, 2011. Summons, ECF No. 1; Compl.
Plaintiff moved for expedited briefing and disposition of this action on February 1, 2012, Mot. to
Court No. 11-00496 Page 6
Expedite, ECF No. 7, but withdrew this motion without explanation on March 1, 2012,
Withdrawal of Mot. to Expedite, ECF No. 12. Defendant filed its motion to dismiss for lack of
subject matter jurisdiction on February 13, 2012. Def.’s Mot. Plaintiff responded on
February 27, 2012, Opp’n to Def.’s Mot. to Dismiss for Lack of Subject Matter Jurisdiction, ECF
No. 11 (“Pl.’s Opp’n”), and defendant replied on March 19, 2012, Reply to Pl.’s Resp. to Mot. to
Dismiss for Lack of Subject Matter Jurisdiction, ECF No. 13.
In March 2012, Acron exported ammonium nitrate to the United States through an
affiliated importer; the merchandise was sold to an unaffiliated party in that same month.3 Joint
Submission Ordered by the Ct. (“Joint Submission”), Attach. 4 (Dept. of Commerce’s Jun. 28,
2012 Notice of Intent to Rescind Admin. Review), at 2 (Oct. 23, 2012), ECF No. 15 (“Notice of
Intent”). The entry corresponding to the sale occurred on April 25, 2012. Id. The entry had an
entered value of $75,000 and, accordingly, required Acron’s affiliate to make a cash deposit of
$190,485. Oral Tr. 21, 31, 43 (Jan. 22, 2013), ECF No. 23.
On April 10, 2012, Commerce issued a notice of opportunity to request an administrative
review of the Order, announcing a period of review (“POR”) of May 2, 2011 through
March 31, 2012. Ammonium Nitrate From Russia: Correction of Notice of Opportunity To
Request Administrative Review, 77 Fed. Reg. 21,527. Based on timely requests made by Acron
and another Russian producer of ammonium nitrate, MCC EuroChem (“EuroChem”), the
Department, on May 29, 2012, initiated the first periodic administrative review of the Order.
Initiation of Antidumping & Countervailing Duty Admin. Reviews & Requests for Revocation in
Part, 77 Fed. Reg. 31,568, 31,568-70 (“Initiation Notice”). Commerce announced in that notice
3
Plaintiff’s attorney publicly disclosed the details of this transaction at a public hearing
held on December 20, 2012. Oral Tr. 21-22, 35-36 (Jan. 22, 2013), ECF No. 23.
Court No. 11-00496 Page 7
that it “intend[ed] to issue the final results of [the] review[] not later than April 30, 2013.” Id.
at 31,569.
On June 28, 2012, Commerce issued a notice announcing its intent to rescind the first
administrative review in response to information indicating that no merchandise of Acron or of
EuroChem had entered the United States during the POR. Notice of Intent at 1. On
October 29, 2012, Commerce published a Federal Register notice announcing its decision to
rescind the administrative review with respect to Acron and EuroChem for the reasons stated in
its earlier notice. Solid Fertilizer Grade Ammonium Nitrate From the Russian Federation:
Notice of Rescission of Antidumping Duty Administrative Review, 77 Fed. Reg. 65,532, 65,533
(citation omitted) (“Notice of Rescission”); see Joint Submission, Attach. 8 (Dept. of
Commerce’s Oct. 22, 2012 Notice of Rescission of Admin. Review and [A]ccompanying Issues
and Decision Mem.), at 1 (Oct. 23, 2012).
On October 23, 2012, the parties, in response to an order of the court, made a joint
submission of various documents considered by one or both parties to be relevant to the question
of jurisdiction. Joint Submission. On November 21, 2012, the court granted COFANT’s motion
to intervene in this action, Order, ECF No. 20, and deemed timely filed COFANT’s reply to
plaintiff’s opposition to defendant’s motion to dismiss, COFANT’S Proposed Reply to Pl.’s
Opp’n to Mot. to Dismiss, ECF No. 21. The court held a public hearing on December 20, 2012
to ascertain jurisdictional facts and hear arguments on the jurisdictional question. ECF No. 22.
At the conclusion of the hearing, plaintiff indicated in response to the court’s inquiry that it
would rest upon the existing record compiled by the court for the purpose of ascertaining
jurisdictional facts, which consisted principally of the October 23, 2012 joint submission. Oral
Tr. 51.
Court No. 11-00496 Page 8
II. DISCUSSION
Plaintiff contests the Department’s decision not to conduct a changed circumstances
review in response to its request.4 Compl. ¶¶ 27-33. Acron’s objective in seeking such a review
is to require Commerce “to re-establish an accurate and meaningful cash deposit rate.” Id. ¶ 27.
According to Acron, the 253.98% cash deposit rate is no longer representative as it was
“(1) calculated in 2000; (2) calculated using the currently inapplicable nonmarket economy
methodology and adverse facts available; and (3) based on the data of only one Russian
producer.” Id. ¶ 31. As relief, plaintiff requests a remand order “with instructions to initiate a
changed circumstance review.” Id. at 8 (Prayer for Relief).
In 1984, Congress amended Section 516A(a)(1) of the Tariff Act, 19 U.S.C.
§ 1516a(a)(1), to remove refusals to conduct changed circumstances reviews from the list of final
determinations reviewable thereunder. Trade and Tariff Act of 1984, Pub. L. No. 98-573,
§623(a)(1), 98 Stat. 2948, 3040 (1984). In so amending Section 516A, Congress did not
preclude judicial review of such refusals under the “residual” jurisdiction provided by section
201 of the Customs Courts Act of 1980 (“Customs Courts Act”), 28 U.S.C. § 1581(i) (2006).5
§ 1581(i). Trustees in Bankr. of N. Am. Rubber Thread Co. v. United States, 593 F.3d 1346,
1352-53 (Fed. Cir. 2010). Paragraph (2) of § 1581(i) provides the Court of International Trade
4
Section 751(b)(1) of the Tariff Act of 1930 provides that “[w]henever the administering
authority . . . receives information concerning . . . a final affirmative determination that
resulted in an antidumping duty order under this subtitle . . . which shows changed
circumstances sufficient to warrant a review of such determination . . . the administering
authority . . . shall conduct a review of the determination . . . after publishing notice of the
review in the Federal Register.” 19 U.S.C. § 1675(b)(1).
5
Unless otherwise indicated, further citations to the Customs Courts Act of 1980 are to
the relevant portions of Title 28 of the U.S. Code, 2006 edition.
Court No. 11-00496 Page 9
jurisdiction of “any civil action commenced against the United States . . . that arises out of any
law of the United States providing for . . . tariffs, duties, fees, or other taxes on the importation of
merchandise for reasons other than the raising of revenue.” 28 U.S.C. § 1581(i)(2).
Paragraph (4) of subsection (i) provides for jurisdiction of “any civil action commenced against
the United States . . . that arises out of any law of the United States providing for . . .
administration and enforcement with respect to the matters referred to in paragraphs (1)—(3) of
this subsection . . . .” Id. § 1581(i)(4).
This action would appear to fall within the literal terms of the jurisdictional grant of
§ 1581(i)(4). However, “§ 1581(i)(4) ‘may not be invoked when jurisdiction under another
subsection of § 1581 is or could have been available, unless the remedy provided under that
other subsection would be manifestly inadequate.’” Trustees in Bankr. of N. Am. Rubber Thread
Co., 593 F.3d at 1351 (citing Int’l Custom Prods. v. United States, 467 F.3d 1324, 1327 (Fed.
Cir. 2006)) (quoting Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987), cert.
denied, 484 U.S. 1041 (1988)); see also id. at 1353 (Ҥ 1581(i)(4) . . . is not available to
circumvent relief that is or could have been available under other portions of § 1581”).
By statute, the real remedy Acron seeks—a redetermined cash deposit rate—would have
been available to Acron through participation in the first periodic administrative review of the
Order. See Section 751(a) of the Tariff Act, 19 U.S.C. § 1675(a)(1) (requiring Commerce to
conduct a periodic administrative review “if a request for such a review has been received” and
to publish results of such review “together with . . . [the] estimated duty to be deposited”);
id. § 1675(a)(2)(C) (“The determination under this paragraph shall be the basis for the
assessment of . . . antidumping duties on entries of merchandise covered by the determination
and for deposits of estimated duties.”) (emphasis added). The court, therefore, must determine
Court No. 11-00496 Page 10
whether plaintiff has demonstrated factually that participating in a periodic administrative review
and, if necessary, contesting the final results of that review according to 19 U.S.C.
§ 1516a(a)(2)(A)(i)(I) and 28 U.S.C. § 1581(c) would have been a “manifestly inadequate”
remedy. Miller & Co., 824 F.2d at 963.
The party invoking a court’s jurisdiction must establish the requisite jurisdictional facts
by a preponderance of evidence, McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189
(1936), and must be given an opportunity to do so before dismissal is ordered, Reynolds v. Army
and Air Force Exchange Service, 846 F.2d 746, 748 (Fed. Cir. 1988) (citations omitted). The
“mere recitation of a basis for jurisdiction, by either a party or a court, cannot be
controlling . . . .” Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006)
(quotation omitted). Although jurisdictional facts normally are stated in the complaint, the court
may consider matters outside the pleadings. See Land v. Dollar, 330 U.S. 731, 735 n.4 (1947);
see also Cedars-Sinai Med. Center v. Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 1993). Where,
as here, a claim depends upon a waiver of sovereign immunity, a court will strictly construe the
jurisdictional statute. United States v. Sherwood, 312 U.S. 584, 586 (1941).
The court considers the adequacy of a remedy stemming from the first review from the
perspective of the factual circumstances existing as of the date plaintiff filed its action,
December 7, 2011. See Miller & Co., 824 F.2d at 963-64. By that date, plaintiff was on notice
of various matters. Plaintiff brought this case after the Department’s publication, on
April 27, 2011, of the Termination Notice, which established an antidumping duty order that
would enter into force on May 2, 2011 and announced a suspension of liquidation of entries of
subject merchandise to begin on that date. Termination Notice, 76 Fed. Reg. at 23,570. This
publication and the Department’s regulations gave Acron notice of the dates that the POR would
Court No. 11-00496 Page 11
begin and end. Specifically, the regulations provide, in pertinent part, that an initial periodic
administrative review of an antidumping Order “will cover . . . entries . . . during the period from
the date of suspension of liquidation . . . to the end of the month immediately preceding the
anniversary month.” 19 C.F.R. § 351.213(e)(1)(ii) (2011). Acron, therefore, was on notice that
the first POR would begin on May 2, 2011, the date of suspension of liquidation, and end on
March 31, 2012.6 From binding precedent, Acron also was on notice at the time it filed its action
that its participation in the first periodic administrative review of the Order required that an entry
of its subject merchandise occur during the first POR. See Allegheny Ludlum Corp. v. United
States, 346 F.3d 1368, 1371-73 (Fed. Cir. 2004).
To demonstrate that participation in the first administrative review (followed by a judicial
challenge to the results, if necessary) would have been a “manifestly inadequate” remedy,
plaintiff would have to show, as a factual matter, either that (1) it was precluded from pursuing
that remedy; or (2) even if it had participated in the first review, the remedy resulting from such
a review would have been inadequate. After review of the record the court compiled to resolve
the question of jurisdiction, the court concludes that plaintiff has not made either showing.7
6
Because an antidumping duty order, not a suspension of investigation, was in effect at
the time this case was brought, the “anniversary month” was the calendar month in which the
anniversary of the publication of the Order occurs, i.e., April, and the first period of review
of the Order, therefore, would conclude on March 31, 2012. See 19 C.F.R. § 351.102(b)(5)
(defining “anniversary month”).
7
Defendant objects to the court’s considering jurisdictional facts apparent from
documents included in the joint submission that did not exist at the time Commerce denied
Acron’s request for a changed circumstances review and, accordingly, are not part of the
administrative record of the changed circumstances review. Joint Submission Ordered by the
Ct., Def.’s Attach. (Def.’s Objection to the Submission Ordered by the Ct.), at 1 (Oct. 23,
2012), ECF No. 15 (“Joint Submission”). Defendant submits that those documents are not
relevant to whether the court has jurisdiction under § 1581(i)(4) and should not be part of the
case record. Id. at 2. The court disagrees. The court may determine jurisdictional facts
(continued…)
Court No. 11-00496 Page 12
There is no dispute that as of the time of commencing this action, no entry of Acron’s
subject merchandise had occurred. At the December 20, 2012 hearing, Acron claimed that, as a
practical matter, it could not have arranged for a sale of its merchandise for exportation to the
United States that would have entered by that date or at any other time during the first POR.
Oral Tr. 26, 35-37, 45. Acron indicated that the task was not achievable during the first POR due
to “logistical” matters, including the difficulty of finding a customer, making financial
arrangements, and shipping the merchandise. Id. The difficulty with this argument is that
plaintiff has introduced no evidence from which the court could make a finding of a
jurisdictional fact to that effect. Plaintiff was given the opportunity to submit documentation,
which it did in the joint submission, and which the court has considered. Plaintiff also had the
opportunity to seek to introduce additional evidence. But at the hearing, plaintiff informed the
court that it did not wish to introduce any other evidence on the issue of jurisdiction and instead
would rest on the joint submission. Oral Tr. 51. Nothing in the joint submission establishes as a
fact that plaintiff could not have arranged a sale of its merchandise that would have resulted in an
entry occurring prior to the time it commenced this action or, in any event, on or before
(continued…)
based on a de novo record. This is not necessarily the same record as the administrative
record the court would consider were it to reach the merits of plaintiff’s claim. The court’s
jurisdictional inquiry must consider those facts that go to the availability of the remedy that
was or could have been available to plaintiff when the action was brought. See Miller & Co.
v. United States, 824 F.2d 961, 963-64 (Fed. Cir. 1987). Under Court of Appeals precedent,
this Court must give plaintiff the opportunity to offer evidence in support of its assertion of
subject matter jurisdiction. See Reynolds v. Army and Air Force Exchange Service, 846 F.2d
746, 748 (Fed. Cir. 2011) (citations omitted).
Court No. 11-00496 Page 13
March 31, 2012.8 At the time of bringing suit, more than seven months of the first POR already
had transpired and nearly four months remained.
Although the extraordinarily high cash deposit rate of 253.98% is a self-evident financial
burden on a sales transaction, plaintiff has not sought to introduce evidence that the deposit rate
effectively precluded such a transaction that would have resulted in an entry during the POR,
which plaintiff knew, or could have known from the Department’s public notices, was ongoing at
the time plaintiff filed suit. From the evidence available to the court bearing on jurisdictional
facts, the court must conclude that plaintiff has not met its burden of demonstrating that the
remedy available through participation in the first review was unavailable to Acron.
Nor can the court conclude that the remedy offered by the first review would have been
manifestly inadequate even were Acron to have pursued that course. The first review was
rescinded as to Acron, and also as to the other exporter/producer, MCC EuroChem, because no
entries of the subject merchandise of either exporter occurred during the first POR. Notice of
Rescission, 77 Fed. Reg. at 65,533. Had rescission not occurred as to Acron, Commerce would
have been required by 19 U.S.C. § 1675(a) to redetermine a cash deposit rate for Acron’s subject
merchandise. The ordinary statutory deadline for completion of the review would have been
8
The joint submission discloses the fact that such a transaction occurred during the first
POR (albeit a sale of merchandise that entered the United States just after the close of the
first POR). Joint Submission, Attach. 4 (Dep’t of Commerce’s Jun. 28, 2012 Notice of Intent
to Rescind Administrative Review), at 2 (Oct. 23, 2012), ECF No. 15. The court need not
consider this fact as it had not occurred as of the time the action was commenced. The
salient point is that Acron has failed to produce evidence demonstrating that it could not have
arranged for a sale producing an entry that occurred either before this action was commenced
or at any other time within the first POR.
Court No. 11-00496 Page 14
April 30, 2013. See 19 U.S.C. § 1675(a)(3)(A).9 The court cannot conclude, as a matter of law,
that a new cash deposit rate determined as of that date would have been a manifestly inadequate
remedy. Although it is possible that Commerce would have extended the review deadline by
invoking its authority under § 1675(a)(3)(A), here the court cannot presume, as a matter of fact,
that such an extension would have occurred.10
Rather than provide specific reasons why a redetermined cash deposit rate obtained by
April 30, 2013 is not an adequate remedy, Acron makes the general argument that the imposition
of the 253.98% cash deposit rate will “result in Plaintiff’s exclusion from the U.S. market and
[the] loss of its entire U.S. business.” Pl.’s Opp’n 13. Alluding to this assertion at the hearing,
plaintiff stated that Acron’s revenue in the first year of the Order was less than 1% of its revenue
in the final twelve months of the suspension agreement, which plaintiff indicated was in excess
of $10 million. Oral Tr. 27, 50. Plaintiff argues, further, that because potential refunds provide
inadequate compensation for the opportunity cost of being unable to participate in the U.S.
market, a periodic review, even if hypothetically available, is a manifestly inadequate remedy.
Id. at 29-30; Pl.’s Opp’n 15. Acron argues that it has never had an opportunity to challenge its
cash deposit rate, which was based on Nevinka’s sales and thus “bears no rational relationship to
9
The statute provides that Commerce ordinarily must issue preliminary results of the
review within 245 days of the last day of the anniversary month and final determination
within 120 days after publication of the preliminary determination. 19 U.S.C.
§1675(a)(3)(A).
10
Although Commerce stated in the Initiation Notice that it intended to issue final results
of the first periodic administrative review “not later than April 30, 2013,” Initiation of
Antidumping & Countervailing Duty Admin. Reviews & Requests for Revocation in Part,
77 Fed. Reg. 31,568, 31,569 (May 29, 2012), the court disregards this fact in resolving the
question of jurisdiction as it refers to a statement of intent by the Department that had not
been made as of the time this case was brought.
Court No. 11-00496 Page 15
the pricing of Plaintiff’s current imports.” Pl.’s Opp’n 14. It submits that Commerce has an
obligation to correct inaccurate cash deposit rates based on outdated methodologies and must do
so for Acron within a reasonable period of time upon termination of the suspension agreement.
Id. at 14-15. At the hearing, plaintiff also argued that the Department has used changed
circumstances reviews in the past to recalculate cash deposit rates upon a country’s graduation
from nonmarket economy status to market economy status, as Russia had during the pendency of
the suspension agreement, and alluded to the instance of the graduation of the German
Democratic Republic. Oral Tr. 33-34, 41-42.
These various arguments, which mostly go to the merits of plaintiff’s claim, are not
persuasive. It is understandable that Acron would take issue with its being made subject to an
extremely high deposit rate Commerce determined in 2000 for another producer using a
methodology (the nonmarket economy methodology) no longer applicable to goods from the
Russian Federation. However, the narrow issue now before the court is not whether the deposit
rate is unreasonable and prejudicial to Acron, nor is it whether Commerce must change that rate.
And the court does not see the relevance of the question of whether Acron could or could not
have challenged that rate prior to bringing the instant action. The issue before the court, rather,
is whether plaintiff, in this action, may invoke 28 U.S.C. § 1581(i) jurisdiction to challenge that
rate when another remedy—one expressly provided for by the Tariff Act and expressly made
judicially reviewable by 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c)—was available at the time
plaintiff filed its summons and complaint. For the reasons discussed previously, the court
concludes that plaintiff has not met its burden of demonstrating that, as a factual matter, the latter
remedy, viewed as of the time of commencement of this action, was manifestly inadequate.
Court No. 11-00496 Page 16
III. CONCLUSION
In conclusion, the court determines, after considering all relevant jurisdictional facts, that
28 U.S.C. § 1581(i) does not provide it subject matter jurisdiction to hear plaintiff’s claim.
Accordingly, the court will enter judgment dismissing this action.
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge
Dated: January 25, 2013
New York, New York