                         Slip Op. 99 - 62

           UNITED STATES COURT OF INTERNATIONAL TRADE

               BEFORE:   RICHARD W. GOLDBERG, JUDGE

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HEVEAFIL SDN. BHD., and            
  FILMAX SDN. BHD.,                
                                   
                    Plaintiffs,    
                                   
               v.                           Court No. 97-04-00659
                                   
THE UNITED STATES,                 
                                   
                    Defendant.     
                                   
                                   
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[Plaintiff’s motion for judgment upon an agency record pursuant
to USCIT R. 56.1 is denied. Judgment entered for defendant.]


                                       Dated: July 14, 1999


     White & Case (Walter J. Spak and David E. Bond) for
plaintiffs Heveafil Sdn. Bhd., and Filmax Sdn. Bhd.

     David W. Ogden, Acting Assistant Attorney General; David M.
Cohen, Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice (Lucius B. Lau); Office of
the Chief Counsel for Import Administration, United States
Department of Commerce (Myles S. Getlan), of counsel, for
defendant.
Court No. 97-04-00659                                   Page 2


                              OPINION

GOLDBERG, Judge: Plaintiff Heveafil Sdn. Bhd. ("Heveafil")

contests liquidation instructions issued by the U.S. Department

of Commerce ("Commerce") following an administrative review of

extruded rubber thread from Malaysia.1   See Extruded Rubber

Thread from Malaysia: Final Results of Antidumping Administrative

Review, 61 Fed. Reg. 54,767 (Oct. 22, 1996) ("Final Results").

Plaintiff challenges Commerce’s instructions under USCIT R. 56.1,

having filed a motion for judgment upon an agency record for an

action other than that described in 28 U.S.C. § 1581(c).

     Plaintiff maintains the antidumping ("AD") statute requires

Commerce to cap antidumping duties on entries made during the

bonding period for purposes of calculating the assessment rate.

Because Commerce failed to calculate the assessment rate in this

manner, plaintiff claims Commerce’s liquidation instructions were

in error.   Plaintiff requests a remand to Commerce with

instructions to recalculate the assessment rate.   The Court

sustains Commerce’s liquidation instructions.




     1
      Because plaintiff Filmax Sdn. Bhd. lacked standing, the
Court dismissed its case. See Heveafil Sdn. Bhd. v. United
States, No. 97-04-00659, slip op. 98-115 (CIT Aug. 28, 1998).
Court No. 97-04-00659                                   Page 3


                                I.
                            BACKGROUND
     This cases revolves around a provision of the antidumping

statute that limits collection of duties on subject merchandise

entered between the preliminary determination in the original

investigation and the International Trade Commission’s ("ITC")

final affirmative determination, a period commonly referred to as

the "bonding period."    Specifically, 19 U.S.C. § 1673f(a)

provides as follows:

     § 1673f. Treatment of difference between deposit of
          estimated antidumping duty and final assessed duty
          under antidumping duty order

     (a)   Deposit of estimated antidumping duty under section
           1673b(d)(2) of this title

          If the amount of a cash deposit collected as security
     for an estimated antidumping duty under section 1673b(d)(2)
     of this title is different from the amount of the
     antidumping duty determined under an antidumping duty order
     published under section 1673e of this title, then the
     difference for entries of merchandise entered, or withdrawn
     from warehouse, for consumption before notice of the
     affirmative determination of the Commission under section
     1673d(b) of this title is published shall be 

           (1) disregarded, to the extent the cash deposit
           collected is lower than the duty under the order, or

           (2) refunded, to the extent the cash deposit is higher
           than the duty under the order.

19 U.S.C. § 1673f(a).2
Court No. 97-04-00659                                    Page 4


     Prior to the underlying administrative review, Commerce

issued its preliminary findings in the original investigation on

April 2, 1992 and soon thereafter instructed the United States

Customs Service ("Customs") to collect provisional AD duties on

Heveafil’s entries at a rate of 2.62%.   See Extruded Rubber

Thread from Malaysia: Preliminary Determination of Sales at LTFV,

57 Fed. Reg. 11,287 (Apr. 2, 1992).   In the final determination,

Commerce assigned Heveafil a dumping rate of 10.68%, see Extruded
Rubber Thread from Malaysia: Final Determination of Sales at

LTFV, 57 Fed. Reg. 38,465 (Aug. 25, 1992), and on October 14,

1992, the ITC issued a final affirmative injury determination.

Consequently, the bonding period in this case ran from April 2,

1992 to October 14, 1992 -- the time frame between the

preliminary determination and the issuance of the ITC decision.

     The underlying administrative review, which Commerce

initiated on December 17, 1993, was Commerce’s first review of

the outstanding order on extruded rubber thread from Malaysia.



     2
      Commerce initiated the underlying review before December
31, 1994. Consequently, the applicable statutory provisions are
those that existed on December 31, 1994, i.e., the law in effect
prior to the Uruguay Round Agreements Act, Pub. L. No. 103-465,
108 Stat. 4809 ("URAA"). See Torrington Co. v. United States, 68
F.3d 1347, 1352 (Fed. Cir. 1995).
Court No. 97-04-00659                                   Page 5


Importantly, this review covered entries made between April 2,

1992 and September 30, 1993 -- that is, entries made both during

and after the bonding period.   See Initiation of AD and CVD

Administrative Reviews, 58 Fed. Reg. 65,964 (Dec. 17, 1993).     In

October, 1996, Commerce issued its Final Results and assigned

Heveafil a dumping rate of 10.65%.    See Final Results, 61 Fed.

Reg. at 54,773.   Commerce did not issue the liquidation

instructions as part of the Final Results, however.     Instead,

Commerce issued draft instructions in January, 1997 and then, on

April 4, 1997, instructed Customs to assess AD duties at a rate

of 9.85% for Heveafil’s entries during the first review period.

See Mem. from P. Schwartz, AD/CVD Enforcement ITA/DOC to Customs

(Apr. 2, 1996), Pub. Doc. No. 16.    For the reasons discussed

below, Heveafil claims Commerce’s liquidation instructions were

unlawful.


                                II.
                           JURISDICTION
     As a preliminary matter, there is a jurisdictional question.

Plaintiff and Commerce each assert that jurisdiction is

established under 28 U.S.C. § 1581(i), the court’s residual

jurisdiction provision.   See Pl.’s Br. in Supp. of Mot. for J. on
Court No. 97-04-00659                                    Page 6


Agency R. ("Pl.’s Br.") at 3; Def.’s Br. in Opp’n to Mot. for J.

on Agency R. at 4.   The Court agrees.   It is incumbent upon the

Court to independently assess the jurisdictional basis for a

case, see Ad Hoc Committee of Fla. Producers of Gray Portland

Cement v. United States, 22 CIT __, __, 25 F. Supp.2d 352, 357

(1998), a principal that is especially true where a party seeks

to invoke the court’s residual jurisdiction authority.    And,

"[i]t is well established that the residual jurisdiction of the

court under section 1581(i) may not be invoked when jurisdiction

under another subsection of § 1581 is or could have been

available, unless the relief provided under that other subsection

would be manifestly inadequate."   Id. (internal quotations
omitted) (citing Norcal/Crosetti Foods, Inc. v. United States, 10

Fed. Cir. (T) 61, 64, 963 F.2d 356, 359 (1992)).

     Here, it is appropriate to exercise residual jurisdiction

authority because jurisdiction under another subsection of

section 1581 is not available.   Commerce’s instructions are not
subject to review under section 1581(a) because Commerce, not

Customs, is the agency responsible for issuing the instructions

and determining the amount of antidumping duty to be assessed.

Commerce’s liquidation instructions also are not reviewable under
Court No. 97-04-00659                                    Page 7


section 1581(c) because they were not part of the Final Results.

Rather, the instructions were issued nearly five months after the

Final Results were published, thereby making it impossible for

Heveafil to contest the instructions within thirty days of the

Final Results as required under 19 U.S.C. § 1516a(a)(2)(B)(iii).

And finally, none of the other subsections in section 1581 (a)

through (h) provides a basis for jurisdiction.   Accordingly, the

issue of antidumping law presented in this case is appropriate

for review under section 1581(i).


                               III.
                        STANDARD OF REVIEW
     Section 2640(e), Title 28, United States Code, provides that

"[i]n any civil action not specified in this section, the Court

of International Trade shall review the matter as provided in

section 706 of title 5."   28 U.S.C. § 2640(e) (1994).   Section

2640 does not address civil actions filed under 28 U.S.C. §

1581(i).   Accordingly, the Court reviews Commerce’s liquidation
instructions as provided in section 706 of title 5 and will find

them unlawful if they are "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law." 5 U.S.C. §

706(2)(A) (1994).
Court No. 97-04-00659                                   Page 8



                                IV.
                            DISCUSSION
     Plaintiff contends that, for purposes of calculating the

assessment rate, Commerce failed to disregard the excess

antidumping duties on entries made during the bonding period as

required by section 1673f(a)(1).   Specifically, plaintiff states

that "[i]n calculating the dumping margin for each sale, and

ultimately Heveafil’s total antidumping duty liability for the

period of review, Commerce included entries during the bonding

period, but did not cap Heveafil’s liability for those entries.

Thus, the total amount of antidumping duties for entries during

the bonding period was included in the calculation of the

assessment rate."   Pl.’s Br. at 6-7.   Because section 1673f(a)(1)

limits the amount of duties that can be collected, Heveafil

argues that the excess duties must also be disregarded for

purposes of calculating the assessment rate.   Therefore, Heveafil

maintains that Commerce should have calculated two assessment

rates here: one for the bonding period, in which excess duties

are not included, and a separate one for the period after the

bonding period that also does not include excess liability from

the bonding period.   See Pl.’s Br. at 15.
Court No. 97-04-00659                                  Page 9


     Instead, Commerce calculated a single assessment rate,

dividing the dumping margin found on sales of all subject

merchandise, both during and after the bonding period, by the

entered value of the merchandise.   In doing so, Commerce did not

cap Heveafil’s liability on entries made during the bonding

period.   As a result, plaintiff claims the excess dumping

liability from bonding period entries that should have been

disregarded has been shifted to the liability on entries made

after the bonding period.   Plaintiff thus maintains the

liquidation instructions constitute an abuse of discretion and

are not in accordance with law.

     Heveafil also notes that, at the administrative level,

Commerce never claimed that the company’s proposed assessment

rate was contrary to the statute.   See Mem. from the Team to
Louis Apple Re: Calculation of Assessment Rates in the First

Review of Extruded Rubber Thread from Malaysia (Mar. 28, 1997)

("Apple Mem."), Pub. Doc. No. 15.   Rather, Commerce rejected
Heveafil’s methodology in favor of a single assessment rate

because Heveafil’s sales listing did not contain entry dates for

most sales and, hence, it was unable to determine "which sales

fell within the bonding period and which did not."   Id. at 3-4.
Court No. 97-04-00659                                    Page 10


Heveafil responds that Commerce’s decision in this respect is not

supported by substantial evidence.

     Plaintiff is wrong.   As recently addressed in Thai Pineapple

Canning Industry v. United States, No. 98-03-00487 (CIT May 5,

1999), section 1673f(a) simply provides a "limitation on

collection."   Id., No. 98-03-00487, slip op. 99-41 at 28.     The

statute does not suggest that the limitation on collection also

impacts the method used to compute an assessment rate.    Indeed,

the basis for calculating dumping margins and assessment rates is

provided for elsewhere in the antidumping code.   See id. (citing
19 U.S.C. § 1675(a)(2), which provides that Commerce shall

determine the foreign market value and U.S. price of each entry,

as well as the dumping margin for each entry).    While Thai

Pineapple involved a post-URAA administrative review, the

substantive law at issue here was not changed by the Uruguay

Round amendments.   Compare 19 U.S.C. §§ 1673f(a) and 1675(a)(2)

(1988), with 19 U.S.C. §§ 1673f(a) and 1675(a)(2) (1994).      The
Court finds the reasoning in Thai Pineapple on point and correct

with respect to this issue.   Commerce’s decision to use a single

assessment rate is plainly supported by the statute.   In

addition, given the statute’s support for Commerce’s liquidation
Court No. 97-04-00659                                    Page 11


instructions, plaintiff’s substantial evidence argument is

mooted.

     Finally, while Commerce agrees with this analysis, it

nevertheless requests a remand to articulate this view at the

administrative level.   As noted earlier, Commerce neglected to

address the statutory basis for its action when it issued the

liquidation instructions.    Apple Mem. at 3-4.   Commerce thus

prays for a remand because it claims there is an issue of

statutory interpretation that must first be addressed by the

agency.

     A remand is not necessary here.    This is not a situation

that implicates agency discretion in the often complex and subtle

interplay between statutory standards and particular facts that

arise in the antidumping arena.    Rather, as Thai Pineapple has
made clear, section 1675(a)(2) requires Commerce to calculate a

dumping margin for each entry.    And, nothing in section 1673f(a)

indicates that Congress intended the cap on collection to impact
the independent calculation of the dumping margin and assessment

rate mandated in section 1675(a)(2).    Therefore, because the

statute’s plain language guides the outcome of this case, a

remand is not appropriate.    See Koyo Seiko Co., Ltd. v. United
Court No. 97-04-00659                                   Page 12


States, __ Fed. Cir. (T) __, __, 95 F.3d 1094, 1101 (1996)

(finding that a remand was inappropriate where the sole issue was

one of statutory construction).


                                V.
                            CONCLUSION
     For the foregoing reasons, the Court finds that Commerce’s

liquidation instructions were in accordance with law.   A separate

Judgment Order will be entered accordingly.




                                  ________________________________

                                       Richard W. Goldberg
                                             JUDGE


Date:     July 14, 1999
          New York, New York.
Court No. 97-04-00659   Page 13
