Ferro Union, Inc. v. U.S.
| Decision Date | 23 March 1999 |
| Docket Number | Court No. 97-11-01973.,Slip Op. 99-27. |
| Parties | FERRO UNION, INC. and Asoma Corporation, Plaintiffs, v. UNITED STATES, Defendant, and Wheatland Tube Company, Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
Mayer, Brown & Platt (Simeon M. Kriesberg, Carol J. Bilzi, Peter C. Choharis, Monica B. Goldberg, Andrew A. Nicely), Washington, DC, for plaintiffs.
David W. Ogden, Acting Assistant Attorney General, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (A. David Lafer, Michele D. Lynch), Karen Bland, International Office of Chief Counsel for Import Administration, United States Department of Commerce, of counsel, Washington, DC, for defendant.
Schagrin Associates (Roger B. Schagrin, R. Alan Luberda, John C. Steinberger), Washington, DC, for defendant-intervenor.
This matter is before the court on a motion for judgment upon the agency record pursuant to USCIT Rule 56.2. Ferro Union, Inc. and Asoma Corporation (collectively "Ferro Union" or "Plaintiffs") challenge the determination of the United States International Trade Administration ("Commerce" or the "Department") in Certain Welded Carbon Steel Pipes and Tubes from Thailand, 62 Fed.Reg. 53,808 (Dep't Commerce 1997) (final results of antidumping admin. rev.) [hereinafter "Final Results"].
Ferro Union raises two grounds for reversal or remand of the Final Results. The facts relating to each count will be stated separately.
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c)(1994). In reviewing final determinations in antidumping duty investigations, the court will hold unlawful those agency determinations which are unsupported by substantial evidence on the record, or otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(1)(B) (1994).
Commerce issued an antidumping duty order on welded carbon steel pipes and tubes from Thailand in 1986. Circular Welded Carbon Steel Pipes and Tubes from Thailand, 51 Fed.Reg. 8,341 (Dep't Commerce 1986). On March 4, 1996, Commerce published a notice of opportunity to request an administrative review of the 1986 order for the period March 1, 1995 to February 29, 1996. Notice of Opportunity to Request Administrative Review, 61 Fed.Reg. 8,238 (Dep't Commerce 1996). In this notice, Commerce stated that requests for review were to be made "[n]ot later than March 31, 1996." Id.
Saha Thai Steel Pipe Co., Ltd. ("Saha Thai"), and S.A.F. Pipe Export Co., Ltd. ("SAF"), Saha Thai's affiliated exporter, along with Ferro Union and Asoma Corp., Saha Thai's U.S. importers, filed a request for review on April 1, 1996.1 Request for Review (Apr. 1, 1996), Pl.'s App., 15A-15B. Thai Union Steel Co., Ltd. ("Thai Union"), another Thai producer, also timely requested a review. Final Results, 62 Fed. Reg. at 53,809. Thai Union is not a party to this action. Commerce announced its initiation of the review on April 25, 1996. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 61 Fed. Reg. 18,378, 18,378-79 (Dep't Commerce 1996). On May 9, Commerce issued the preliminary results for a preceding administrative review of the same merchandise, and assigned Saha Thai an antidumping margin of 1.07 percent. Certain Welded Carbon Steel Pipes and Tubes from Thailand, 61 Fed.Reg. 21,159, 21,161 (Dep't Commerce 1996) (prelim. results of admin. rev.).2 Plaintiffs claim that this low margin prompted Saha Thai's May 14, 1996 request that Commerce terminate the review with respect to sales by Saha Thai. Request for Termination (May 14, 1996), Pl.'s App., 16A-16B.
The domestic interested parties, Allied Tube and Conduit Corporation, Laclede Steel Company, Sawhill Tubular Division of Armco, Inc., and Wheatland Tube Company,3 (collectively the "Domestic Interested Parties"), objected to a termination of the administrative review on the basis that they had made a timely request for review on March 29, 1996. Schagrin Associates' Comments on Request to Terminate Review (June 21, 1996), P.R. 8, DIP's App., p. 23. In late May, counsel for the Domestic Interested Parties spoke with Commerce supervisor, Jean Kemp, and learned that Commerce had no record of a request for review by the Domestic Interested Parties in its Central Records Unit, Room B-099.4 Id. at 2. Nevertheless, the Domestic Interested Parties were able to produce evidence of their March 29 request.5
Commerce found that "the evidence on the record does not provide a definitive answer" regarding whether there was any "official record of petitioners' request." Commerce Memorandum to Robert S. LaRussa from Stephen J. Powell (July 11, 1996), P.R. 14, DIP's App., p. 44. Commerce concluded that "because the reason for the filing error is unclear and given the remedial nature of the antidumping law and the fact that Saha Thai received notice of the [Domestic Interested Parties'] request," it could elect to continue the ongoing administrative review. Final Results, 62 Fed.Reg. at 53,809.
Ferro Union claims that Commerce violated its regulations by denying Saha Thai's request for termination and continuing the review.
Ferro Union asserts that Commerce was obliged to terminate the review on the grounds of Commerce's own regulations and the agency's established practice under those regulations. Ferro Union also argues that the evidence of the Domestic Interested Parties' request was not a sufficient independent ground for Commerce to conduct the review.
Under the antidumping statute, 19 U.S.C. § 1675(a)(1)(1994), Commerce must conduct an administrative review of an anti-dumping duty order if a party requests such a review.6 This method of commencing reviews replaced the former requirement that Commerce conduct reviews on an annual basis, regardless of requests for review by foreign producers, importers, or domestic interested parties. See Trade Agreements Act of 1979, Pub.L. No. 96-39, Title I, § 101, 93 Stat. 175 (1979) ( Tariff Act of 1930) (Sec. 751 administrative review of determinations). When Congress eliminated the obligatory annual reviews, the conference agreement stated that this change was "designed to limit the number of reviews in cases in which there is little or no interest, thus limiting the burden on petitioners and respondents, as well as the administering authority." H.R.Rep. No. 98-1156, 98th Cong., 2d Sess. at 181 (1984), reprinted in 1984 U.S.C.C.A.N. 5220, 5298. The statute does not make any provisions for the termination of administrative reviews.
Commerce did not establish a method of withdrawing a request for review until it issued its final rules in March 1989, which implemented the 1984 amendments.
The Secretary may permit a party that requests a review ... to withdraw the request not later than 90 days after the date of publication of notice of initiation of the requested review. The Secretary may extend this time limit if the Secretary decides that it is reasonable to do so. When a request for review is withdrawn, the Secretary will publish in the Federal Register notice of [the termination of the review.]
Antidumping Duties: Final Rule, 54 Fed. Reg. 12,742, 12,778 (Dep't Commerce 1989) [hereinafter "1989 Regulations"] (codified at 19 C.F.R. § 353.22(a)(5)(1995)).7
The commentary to 19 C.F.R. § 353.22(a)(5) addresses situations where one party has submitted a request for review, but it does not indicate how Commerce would respond to situations where multiple parties make a request for review and then disagree over whether to terminate the review. See 1989 Regulations, 54 Fed.Reg. at 12,755. In its final regulations issued to comply with the Uruguay Round Agreements Act ("URAA"), Pub.L. No. 103-465, 108 Stat. 4809 (1994), Commerce amended 19 C.F.R. § 353.22(a)(5). The new provision provides:
Withdrawal of request for review. The Secretary will rescind an administrative review under this section, in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. The Secretary may extend this time limit if the Secretary decides that it is reasonable to do so.
Antidumping and Countervailing Duties: Final Rule, 62 Fed.Reg. 27,296, 27,393 (Dep't Commerce 1997) (codified at 19 C.F.R. § 351.213(d)(1) (1998)) (hereinafter 1998 Regulations).8
Ferro Union claims that the 1989 Regulations, 19 C.F.R. § 353.22(a)(5), mandated termination of antidumping reviews if the termination request was made within 90 days. Ferro Union bases this argument on that fact that the last sentence of the regulation says that the Secretary "will" publish notice of termination if the request is "withdrawn," and that it is the party, and not Commerce, which withdraws the request.
The plain language of 19 C.F.R. § 353.22(a)(5) states that the Secretary "may" permit a party who requested a review to withdraw that review. Therefore, on its face, 19 C.F.R. § 353.22(a)(5) did not mandate that Commerce terminate these reviews. Although the 1998 final regulations, 19 C.F.R. § 351.213(d)(1) (1998), state that the Secretary "will rescind" an administrative review that is withdrawn, whether the withdrawal will be recognized is discretionary. Furthermore, the legislative history of 19 U.S.C. § 1675(a) indicates that Congress intended to limit reviews in which no one had an interest, and Commerce could rightly continue a review in which there is an expressed interest.
While 19 C.F.R. § 351.213(d)(1) (1998) is written in more mandatory language, neither 19 C.F.R. § 353.22(a)(5)(1995) nor 19 C.F.R. § 353.213(d)(1) (1998) address the question of terminating reviews when more than one party makes an initial request for the administrative review. When faced with such a situation, Commerce could...
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