|In the matter of:
GRAY PORTLAND CEMENT AND
CLINKER FROM MEXICO
||File no. USA-97-1904-02
1. Time Period for Administrative Reviews
The 12-month time period for completing administrative reviews is laid
down in Department of Commerce regulations adopted pursuant to provisions of the Tariff
Act of 1930, as amended. At the time of the fourth administrative review the statute,
codified at 19 U.S.C. §1675(a)(1), provided in relevant part:
". . . At least once during each 12-month
period beginning on the anniversary of the date of publication of . . . an antidumping
duty order . . . the administering authority . . . shall . . . review, and determine . . .
the amount of any antidumping duty, and . . . shall publish in the Federal Register the
results of such review, together with notice of any duty to be assessed . . . ." 67
The Departments regulations provided that
the Secretary "will . . . not later than 365 days after the anniversary month, issue
the final results that include . . .the weighted-average dumping margin, if any, during
the period of review . . . ." 68
In evaluating the extent to which, if at all, the statutory 12-month
time line for annual reviews renders unreasonable the Investigating Authoritys
application of a BIA margin that came into effect after this 12-month period, we are
constrained by the limited scope of our review under Chevron, and by relevant
judicial precedent regarding the nature of 19 U.S.C. §1675(a)(1).
Applying the Chevron framework set out above, this Panel can
glean no clear Congressional direction from the language of the statute with respect to
the completion of administrative reviews within one year. We find sufficient ambiguity in
the statutory language of §1675 to render it impossible for this Panel to determine that
Congress "unambiguously expressed" an intent to require the Department to
initiate and compete the administrative review, and to determine the amount of duty within
the 12-month time period. The statutes 12-month period may instead refer to the time
periods embraced by periodic administrative reviews. One plausible reading is that the
quoted language requires each successive annual administrative review to begin on the
anniversary date of the publication of the antidumping duty order. All
that is clear from the legislative history is that Congress intended that administrative
reviews of antidumping determinations expedite the administration of the assessment phase
of antidumping investigations. 69 Therefore,
following the Supreme Courts Chevron opinion, since "Congress has not
directly addressed the precise question" 70 of the
time within which the Department must complete administrative reviews, we must accord
great deference to the Departments construction of the statute.
The Departments regulations, quoted above, provide for a 12-month
period for completion of annual administrative reviews; however, Department practice
regards that time period as "directory" rather than mandatory. And, reading the
statute together with the Departments regulations, the courts have agreed. Ample
judicial precedent interprets §1675 and the Departments regulations as merely
"directory" in the sense that the Departments failure to comply with the
12-month time limit does not entail restriction of the Departments regulatory
action. In Nissan Motors, 71
the Court of International trade acknowledged that the 12-month time limit of §1675(a)
and the Departments regulations are not mandatory and determined that the Department
is not precluded from obtaining more current data upon which to base a final determination
notwithstanding its failure to complete an administrative review in a timely manner. In this and other contexts, statutory time periods are not regarded
as mandatory unless the statute prescribes consequences for failure of the Department to
comply with the time periods. 72
In Phillip Bros., the court refused to
impose a penalty of deemed liquidation absent specific language in the statute or its
legislative history that compels the conclusion that statutory suspension of liquidation
terminates when the Department exceeds the 12-month time limit. 73
While the court did not condone the Departments failure to
comply with the time limit, failure to act in a timely manner does not restrain the
Department from acting after the year period has elapsed. 74
In view of well-established case law to the contrary, it would exceed the scope of our
review authority to impose negative consequences on the Department for failure to complete
its administrative review within 12 months, where Congress has not chosen to mandate
Cemex, both in its brief and at oral argument,
points this Panel to judicial discussions of the §1675 time period in cases concerning
the Investigating Authoritys failure to complete administrative reviews. In UST
v. United States, the CIT declined to decide whether to issue a writ of mandamus,
citing the Departments proposed schedule as a viable alternative. 75
The CIT noted that while antidumping time lines were not mandatory, they could not be
In affirming the CITs denial of a
preliminary injunction, the Federal Circuit noted its concern about the Departments
lengthy and seemingly unwarranted delay in completing administrative reviews of
antidumping orders. 76 However, the cited cases involved
petitions for writs of mandamus to compel the Investigating Authority to complete
administrative reviews. The cases did not address the Departments authority to
complete reviews after expiration of the 12-month time period. Cemexs
assertion that UST stands for the proposition that courts have interpreted
§1675(a)(1) as imposing a one-year requirement for completing administrative reviews is
Moreover, the CIT has determined that the remedy for the
Departments failure to complete an administrative review within time limits is a
suit to enforce the deadline, 77 a remedy that Cemex did
not pursue. Although Cemex now complains that one of the consequences of the delay-- the
availability of a higher 109.43 percent prior dumping margin for BIA-- has been injurious
to Cemex, there is no evidence that Cemex asked the Investigating Authority during the
course of the administrative review to complete the review promptly, or that it
necessarily would have benefitted from prompt completion of the review. In fact, Cemex appears to have encouraged the Investigating
Authority not to issue the preliminary results promptly. 78
Rather, the only participant seeking prompt completion of the
review was the STCC, whose representatives met with officials of the Investigating
Authority on February 3, 1996, to request prompt completion of the proceedings. 79
thinly-veiled but unsubstantiated accusations by Cemex, 80
there is also no evidence that the Investigating Authority intentionally delayed
the issuance of the final results so that the intervening higher 109.43 percent rate would
be available for use as BIA in this proceeding. 81
Although the CIT confirmed the 109.43 percent rate in the second review on October 24,
1996, the final results were not issued in the fourth review until almost six months
later. Had the Investigating Authority wanted to punish Cemex, it presumably would have
issued the final results earlier, so that imports would have been subject to the higher
cash deposit rate sooner. Also, as noted below, counsel for both
Cemex and the Investigating Authority confirmed at oral argument that under the
then-applicable statute delays beyond the 12-month period in completing reviews were not
On a few occasions, interested parties have
become so frustrated with the Investigating Authoritys delays in completing reviews
that they have appealed to the CIT for assistance. In one such
instance, Nakajima All Co., Ltd. v. United States, 83
the CIT initially refused to issue a writ of mandamus to the Investigating Authority,
although it directed the Investigating Authority in its opinion to comply with a specific
schedule for completing the review. 84 A few months later, after the Investigating Authority had issued its
preliminary results, the court issued mandamus directing the Investigating Authority to
complete the reviews by a certain date. 85 In Nakajima, the respondent was objecting to delays in
completing five administrative reviews, one of which had been pending for nearly five
years, another for nearly four years, and a third for nearly three years. 86 However, no penalty was imposed on the Investigating
Authority for the delays, nor was any benefit conferred on the plaintiff, other than
responding to its wish to have the reviews completed. In Koyo
Seiko Co.,Ltd. v. United States, the court ordered the Investigating Authority to
recalculate the firms margins, using an earlier, more favorable model match
methodology. 87 Once again,
however, the delays were extreme sixteen years had passed since the initial entries.
88 Even there, the remedy was designed to compel the
Investigating Authority to complete the review, not to penalize it for delays.
Cemex also cites two cases for the proposition that when the
Investigating Authority fails to adhere to statutory requirements in an administrative
review, it may not act in a manner substantially prejudicial to the respondent. In Hide-Away Creations, Ltd.v. United States, 89 the Department conducted an administrative review of an
antidumping order without publishing timely notice of initiation of the review in the
Federal Register. The CIT determined that plaintiffs were
prejudiced by lack of proper notice, and ordered the Department to consider data that
plaintiffs had been entitled to submit. 90 In Leather Wearing Apparel from Mexico,
91 the NAFTA Panel cited Hide-Away in determining that
the Departments failure to adhere to the statutory and regulatory provisions
requiring timely notice unfairly prejudiced complainants. 92
However, the cited cases involved the
Departments failure to timely publish its notice of initiation of administrative
reviews, rather than failure to complete administrative reviews within the 12-month
period. In Hide-Away, the Department did not dispute that publication of notice
in the Federal Register of initiation of administrative reviews was a statutory
requirement, but claimed that their notice of intent to conduct a review within twelve
months satisfied the statutory requirement. 93 The court noted that the statute places an explicit obligation on
the Department to publish a notice in the Federal Register prior to the initiation of an
administrative review, which notice must include the specific date of commencement of the
Moreover, in the cited cases, lack of proper notice was substantially
prejudicial to respondents, because it excluded directly relevant evidence from the
administrative review. Investigating Authority failure to give proper notice implicates
procedural due process concerns in a way that failure to complete an administrative review
within the one-year period does not. Finally, in Hide-Away,
there were no other means for plaintiffs to have ascertained the actual date of
commencement of the review. 95 As stated above, Cemex
could have sought a remedy for the Departments failure to adhere to the
administrative review time line by bringing suit to compel the Department to complete the
The members of the panel are deeply troubled by the fact that in this
case the Investigating Authority substantially exceeded the 12-month period for completion
of administrative reviews, in this instance by more than 19 months. Apparently this was
not unusual at the time. The Investigating Authority exceeded the
12-month limit in many other reviews arising before changes in the statute adopted in
1995. 96 Counsel for the
Investigating Authority conceded at oral argument that "it was not at all unusual for
reviews to take longer than 12 months." 97 Counsel for Cemex, in response to a question from the Panel,
indicated that as an experienced trade attorney he could not recall a case in which the
Investigating Authority had completed a review within the12-month period. 98
Moreover, in the present case the adverse impact of the delay is
obvious. If the Investigating Authority had completed the review
by August 31, 1995, the highest BIA rate then available would have been 61.85 percent, and
assignment of that rate as BIA for the fourth review would have resulted, according to
Cemex, in a savings of $13 million for Cemex imports as compared to duties payable
at the 109.43 percent rate. 99
It is also readily apparent that delays in completing administrative
reviews may have adverse consequences for all interested parties. Where
a foreign manufacturer or importer provides information to the Investigating Authority
which ultimately results in a reduction in dumping duties (and cash deposits on future
shipments 100 ), the foreign manufacturer or importer is
prejudiced by delays in issuance of the final determination that results in a reduction of
the duties. Conversely, where the information provided to the Investigating Authority
ultimately results in an increase in the dumping duties and cash deposits, the delay in
implementing the higher rate prejudices the domestic industry, since it does not receive
the benefit of the higher dumping duties designed to counteract the impact of injurious
dumping on the domestic industry. In both instances the purposes of the dumping laws are
Notwithstanding such concerns, U.S. case law is clear. Although
regulations adopted pursuant to the statute specify a one year time frame for completion
of administrative reviews, the failure of the Investigating Authority to meet this
deadline does not carry any resulting penalties for the Investigating Authority, or
otherwise limit the Investigating Authoritys powers in conducting the administrative
review. This includes, but is not limited to, the
Departments authority to choose a particular BIA-based dumping margin. U.S. courts
have consistently held that such statutory time limits are "directory" and not
mandatory.101 Thus, while we fully sympathize with the
concerns expressed by our colleague in his dissenting opinion, we cannot accept his
reasoning or his result.
Cemex concedes that Congress has declined to
impose a negative consequence on the Investigating Authority should it not complete its
administrative reviews within the one year time frame. 102
Moreover, it is clear on the face of the statute that there is no explicit penalty for
completion of an administrative review outside of the one year suggested deadline, or even
outside of an explicit time-table. In short, at the time of the fourth administrative
review, the time periods in United States law were not mandatory; the Department was not
required by law to complete administrative reviews within the one year time period.
The pre-1995 statute that controls here can be contrasted with the law
as changed on January 1, 1995, when the Uruguay Round Agreements Act became effective. The
Act modified the law to set different time limits for preliminary and final determinations
in annual reviews. The amended statute sets explicit time limits
for preliminary determinations (245 days) and final determinations (an additional 120
days), subject to certain extensions to a possible total of 545 days, or approximately 18
months. 103 Still, since Congress declined to impose a
penalty on the Investigating Authority for its failure to comply with the prescribed time
periods, it is questionable whether the time periods in the new statute are mandatory
rather than "directory" an issue this Panel need not decide. In any event, if, as one panelist stated, it is dangerous for the
Investigating Authority to have so much discretion to breach time limits, 104 it is the responsibility of Congress, not this Panel,
to correct the situation. That being said, it remains the hope of the members of this
panel that the Investigating Authority will fully consider the adverse consequences of its
failure to follow the statutory time limits for completing reviews, and endeavor to comply
with such time constraints in the future.
Continue to: 2. Investigating Authority Selection of a BIA Rate
67 The quoted
language is extracted from the following provisions of 19 U.S.C. §1675(a)(1994):
(1) In general. At least once during each 12-month period beginning on
the anniversary of the date of publication of . . . an antidumping duty order under
thissubtitle . . . the administering authority, if a request for such a review has been
received and after publication of notice of such review in the Federal Register,
* * *
(B) review, and determine (in accordance with paragraph (2)), the amount
of any antidumping duty, and
* * *
(C) . . . Shall publish the results of such review, together with notice
of any duty to be assessed . . . in the Federal Register. . .
69 H.R. Rep. 317,
96th Cong., at 72 (1979).
quoted in the text at supra, note 25.
71 651 F.Supp. 1450,
1455 (Ct. Intl Trade 1986).
72 See Canadian
Fur Trappers Corp. v. U.S., 884 F.2d 563, 566 (Fed. Cir. 1989) (statute providing
that when suspension of liquidation of an entry of merchandise is removed, entry shall be
liquidated within 90 days is directory rather than mandatory, so that failure to liquidate
within 90 days does not result in entry being deemed liquidated); Nakajima All Co. v.
United States, 682 F.Supp 52 (Ct. Intl Trade 1988); Stickstoffwerke
Piesteritz GmbH v. U.S., 989 F.Supp. 253, 257 (Ct. Intl Trade 1997) (noting
that a statute is not mandatory unless the statute includes consequential language).
73 Phillip Bros.,
Inc. v. United States, 630 F.Supp 1317, 1324 (Ct. Intl Trade 1986).
75 648 F.Supp. 1, 6
(Ct. Intl Trade 1986), affd 831 F.2d 1033 (Fed. Cir. 1987).
76 UST, 831
F.2d at 1032.
Permac v. U.S., 642 F.Supp 1187, 1197 (Ct. Intl Trade 1986) (not condoning the
Departments failure to meet time limits, but noting that "the availability of
an action to enforce those time limits accords adequate protection to parties who are
truly aggrieved by undue agency delays").
78 See Cemex
submission of Dec. 15, 1995, A.R. Pub. Doc. No. 67, at 1-2, "[a]lthough CEMEX
believes as a general rule that Investigating Authority should complete all on going [sic]
reviews as promptly as possible, in this fourth administrative review the Investigating
Authority is not required to complete the administrative review within a prescribed time
period. Consequently, there is no reason for the Investigating Authority [to] immediately
issue the preliminary results."
79 STCC brief at 44,
note 7, citing a memorandum dated Feb. 22, 1996, to the file, A.R. Pub. Doc. No. 75.
(Given that the review was not completed until fourteen months later, this direct approach
to the Investigating Authority proved similarly ineffective.)
80 OT at 14-15.
81 The comment period
closed on June 20, 1996, and the Final Results were issued April 10, 1997. The record
contains no explanation of the reasons for the nine-month delay.
82 See infra,
notes 97 and 98, and accompanying text.
83 682 F.Supp. 52
(Ct. Intl Trade 1988).
84 682 F.Supp. at
85 Nakajima All
Co., Ltd. v. United States, 691 F.Supp. 358, 364 (Ct. Intl Trade 1988).
86 Id. at
359. In Matsushita Elec. Indus. Co., Ltd. v. United States, 688 F.Supp. 617, 625
(Ct. Intl Trade 1988), the court directed the Investigating Authority to complete
four outstanding administrative reviews by a date certain. No penalty was imposed on the
Investigating Authority for its delays.
87 Koyo Seiko v.
United States, 796 F.Supp. 517, 524 (Ct. Intl Trade 1992).
88 Id. at
89 577 F.Supp. 1021
(Ct. Intl Trade 1983).
90 Id. at
91 Secretariat File
No. USA-94-1904-02 (Apr. 11, 1995).
92 Id. at
577 F.Supp. at 1025-26.
94 Id. at
577 F.Supp. at 1026.
96 See Nakajima
All. Co., Ltd. v. United States, 682 F.Supp. 52, 59-60 (Ct. Intl Trade 1988),
in which respondents (unsuccessfully) sought mandamus to require the Investigating
Authority to complete five administrative reviews which at the time of the decision had
been ongoing nearly 5, 4, 3, 2 and 1 years, respectively.
97 OT at 53.
98 OT at 21.
99 OT at 37. On the
other hand, as discussed earlier, Cemex on at least one occasion urged the Investigating
Authority not to complete the review promptly.
100 Under U.S. law,
the margin rate determined in an annual review serves as the cash deposit rate applicable
to new imports of the merchandise until the completion of a subsequent review, 19 U.S.C.
§ 1675(a)(2) (1988). Thus, in this 4th review, the final results stated in
pertinent part, "Furthermore, the following deposit requirements will be effective
for all shipments of the subject merchandise entered, or withdrawn from warehouse, for
consumption on or after the publication date of these final results of review . . .."
61 Fed. Reg. 17,581, 17,589 (1997).
101 See Philipp
Bros., Inc. v. United States, 630 F. Supp. 1317, 1323 (Ct. Intl Trade 1986); Nissan
Motor Corp. in U.S.A. v. United States, 651 F.Supp. 1450, 1455 (Ct. Intl Trade
1986); Usery v. Whitin Machine Works, Inc., 554 F.2d 498, 501 (1 st Cir. 1977)
(time limit in adjustment assistance statute held not mandatory); Fort Worth National
Corp. v. Federal Savings & Loan Insurance Corp., 469 F.2d 47, 58 (5th
Cir.1972) (FSLIC 90 day time limit not mandatory, as no consequences were specified in the
statute for failure of agency to act within the time limit); Katunich v. Donovan,
594 F. Supp. 744, 748-50 (Ct. Intl Tread 1984)(Labor Secretary did not lose
jurisdiction under adjustment assistance statute when he failed to act within the
specified 60 day time limit, since the statute did not purport to restrain the Secretary
from acting subsequently or impose adverse consequences); Alberta Gas Chemicals, Inc.
v. United States, 515 F.Supp. 780, 785 (Ct. Intl Trade 1981) (Treasury
Departments jurisdiction under antidumping statute was not affected within 30 day
period specified in statute).
102 Cemex brief at
103 19 U.S.C.
104 OT at 69.