OAS
NORTH AMERICAN FREE TRADE AGREEMENT
ARTICLE 1904
OPINION AND ORDER OF THE PANEL


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 Department’s 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 Authority’s 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 statute’s 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 Court’s 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 Department’s construction of the statute.

The Department’s 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 Department’s regulations, the courts have agreed. Ample judicial precedent interprets 1675 and the Department’s regulations as merely "directory" in the sense that the Department’s failure to comply with the 12-month time limit does not entail restriction of the Department’s regulatory action. In Nissan Motors, 71 the Court of International trade acknowledged that the 12-month time limit of 1675(a) and the Department’s 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 Department’s 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 specific consequences.

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 Authority’s failure to complete administrative reviews. In UST v. United States, the CIT declined to decide whether to issue a writ of mandamus, citing the Department’s proposed schedule as a viable alternative. 75 The CIT noted that while antidumping time lines were not mandatory, they could not be ignored entirely.

In affirming the CIT’s denial of a preliminary injunction, the Federal Circuit noted its concern about the Department’s 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 Department’s authority to complete reviews after expiration of the 12-month time period. Cemex’s 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 overly broad.

Moreover, the CIT has determined that the remedy for the Department’s 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

Despite some 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 unusual. 82

On a few occasions, interested parties have become so frustrated with the Investigating Authority’s 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 firm’s 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 Department’s failure to adhere to the statutory and regulatory provisions requiring timely notice unfairly prejudiced complainants. 92

However, the cited cases involved the Department’s 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 review. 94

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 Department’s failure to adhere to the administrative review time line by bringing suit to compel the Department to complete the review.

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 frustrated.

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 Authority’s powers in conducting the administrative review. This includes, but is not limited to, the Department’s 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, shall—

* * *

(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. . .

68 19 C.F.R. 353.22(c)(7)(1994).

69 H.R. Rep. 317, 96th Cong., at 72 (1979).

70 Chevron, quoted in the text at supra, note 25.

71 651 F.Supp. 1450, 1455 (Ct. Int’l 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. Int’l Trade 1988); Stickstoffwerke Piesteritz GmbH v. U.S., 989 F.Supp. 253, 257 (Ct. Int’l 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. Int’l Trade 1986).

74 Id.

75 648 F.Supp. 1, 6 (Ct. Int’l Trade 1986), aff’d 831 F.2d 1033 (Fed. Cir. 1987).

76 UST, 831 F.2d at 1032.

77 American Permac v. U.S., 642 F.Supp 1187, 1197 (Ct. Int’l Trade 1986) (not condoning the Department’s 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. Int’l Trade 1988).

84 682 F.Supp. at 59-60.

85 Nakajima All Co., Ltd. v. United States, 691 F.Supp. 358, 364 (Ct. Int’l Trade 1988).

86 Id. at 359. In Matsushita Elec. Indus. Co., Ltd. v. United States, 688 F.Supp. 617, 625 (Ct. Int’l 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. Int’l Trade 1992).

88 Id. at 523.

89 577 F.Supp. 1021 (Ct. Int’l Trade 1983).

90 Id. at 1026.

91 Secretariat File No. USA-94-1904-02 (Apr. 11, 1995).

92 Id. at 53-4.

93 Hide-Away, 577 F.Supp. at 1025-26.

94 Id. at 1027.

95 Hide-Away, 577 F.Supp. at 1026.

96 See Nakajima All. Co., Ltd. v. United States, 682 F.Supp. 52, 59-60 (Ct. Int’l 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. Int’l Trade 1986); Nissan Motor Corp. in U.S.A. v. United States, 651 F.Supp. 1450, 1455 (Ct. Int’l 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. Int’l 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. Int’l Trade 1981) (Treasury Department’s jurisdiction under antidumping statute was not affected within 30 day period specified in statute).

102 Cemex brief at 14-15.

103 19 U.S.C. Section 1675(a)(3)(A).

104 OT at 69.

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