533 F.Supp.2d 1290 (CIT. 2007), 05-00539, Trustees in Bankruptcy of North American Rubber Thread Co., Inc. v. United States
|Docket Nº:||Court No. 05-00539|
|Citation:||533 F.Supp.2d 1290|
|Party Name:||TRUSTEES IN BANKRUPTCY OF NORTH AMERICAN RUBBER THREAD CO., INC., Filmax Sdn. Bhd., Heveafil USA, Inc., and Heveafil Sdn. Bhd., Plaintiffs, v. UNITED STATES, Defendant. Slip Op. 07-184.|
|Case Date:||December 21, 2007|
|Court:||Court of International Trade|
Miller & Chevalier Chartered, Washington, DC (Peter J. Koenig) for Plaintiff Trustees in Bankruptcy of North American Rubber Thread Co., Inc.
White & Case, LLP, Washington, DC (Walter J. Spak, Emily Lawson, and Jay C. Campbell) for Plaintiffs Filmax Sdn. Bhd., Heveafil USA, Inc., and Heveafil Sdn. Bhd.
Jeffrey S. Bucholtz, Acting Assistant Attorney General; United States Department of Justice; Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, (Stephen C. Tosini); David W. Richardson, Of Counsel, Office of Chief Counsel for Import Administration, Department of Commerce for Defendant United States.
GOLDBERG, Senior Judge.
This case is before the Court on Plaintiffs' motion for judgment upon the agency record. Plaintiffs are Trustees in Bankruptcy of North American Rubber Thread Co., Inc., the successor-in-interest to the North American Rubber Thread Co., Inc. (together, "NART"), and Malaysian rubber manufacturer Heveafil, consisting of Filmax Sdn. Bhd, Heveafil USA Inc., and Heveafil Sdn. Bhd. (together, "Heveafil"). 1 Plaintiffs seek judicial review of a decision by the U.S. Department of Commerce ("Commerce") to not initiate a changed circumstances review of an antidumping duty order. Plaintiffs allege that Commerce's decision was arbitrary, capricious, or otherwise not in accordance with law. For the reasons that follow, the Court remands Commerce's refusal to initiate the changed circumstances review for further consideration consistent with this opinion.
The procedural history of this case is set forth at length in Trustees in Bankruptcy of North American Rubber Thread Co. v. United States, 30 CIT ----, ----, 464 F.Supp.2d 1350, 1351-53 (2006)
(" NART "). Briefly, the relevant facts are as follows: In 1992, Commerce published an antidumping duty order on extruded rubber thread from Malaysia (the "Order"). Approximately six years later, Commerce completed an administrative review of the Order for the period of October 1, 1995 through September 30, 1996. Heveafil challenged the results of the 1995-1996 review, and liquidation of the entries covered by that review was suspended. 2
In 2004, Commerce granted Heveafil's request to conduct a changed circumstances review of the Order, pursuant to 19 U.S.C. § 1675(b)(1), on the basis that NART, the sole manufacturer of the domestic like product, had filed for bankruptcy and ceased operations. NART agreed with Commerce's preliminary decision that changed circumstances warranted revocation of the Order effective October 1, 2003--the first day of the most recent period of administrative review and the only period for which an administrative review had not been completed. Heveafil disputed this effective date and argued that Commerce should revoke the Order effective October 1, 1995. This earlier date would cover all unliquidated entries of the subject imports. Commerce ultimately revoked the Order and selected October 1, 2003 as the effective date of revocation. 3
On February 18, 2005, NART changed its position supporting Commerce's effective date of revocation. NART requested that Commerce initiate another changed circumstances review seeking retroactive revocation of the Order effective October 1, 1995--the earlier date requested by Heveafil in the first changed circumstances review. NART explained in its request that it no longer had an interest in the enforcement or existence of the Order as of that earlier date.
Commerce then notified NART by letter of its refusal to initiate the second changed circumstances review. Commerce explained that a changed circumstances review must be conducted in the context of an existing order and that "revoking an order to cover entries subjected to a completed administrative review would be contrary to the Department's long-standing practice." See Compl., Dec. 6, 2005, Ex. 1 (Commerce's response to request for changed circumstances review dated June 15, 2005). Specifically, Commerce stated that it was unable to conduct the requested review because "1) all administrative reviews of [the subject imports] have been completed; and 2) there is no existing order for which to initiate a changed circumstances review...." 4 Id.
In the present action, Plaintiffs request the Court to order Commerce to initiate a changed circumstances review to consider
changing the effective date of revocation of the Order from October 1, 2003 to October 1, 1995.
II. JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction under 28 U.S.C. § 1581(i). See NART, 30 CIT at ----, 464 F.Supp.2d at 1364 (denying Commerce's motion to dismiss for lack of subject matter jurisdiction and failure to state a cause of action). When a matter is within the subject matter jurisdiction of § 1581(i), the Court will set aside an action by Commerce if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (2000); see 28 U.S.C. § 2640(e) (2000).
A. Changed Circumstances Reviews
Antidumping law grants Commerce the authority to revoke an antidumping order based on changed circumstances. See 19 U.S.C. § 1675(b), (d) (2000). Commerce is required to conduct a changed circumstances review whenever it receives a request by an interested party that "shows changed circumstances sufficient to warrant a review" of an antidumping duty order. § 1675(b)(1). Commerce's regulations elaborate on this requirement, stating that Commerce may revoke an order if "[p]roducers accounting for substantially all of the production of the domestic like product to which the order (or the part of the order to be revoked) ... pertains have expressed a lack of interest in the order, in whole or in part...." 19 C.F.R. § 351.222(g) (2006); see Or. Steel Mills Inc. v. United States, 862 F.2d 1541, 1545 (Fed.Cir.1988) (holding that lack of industry support alone is a ground for revocation); Stainless Steel Plate in Coils from Italy, 71 Fed.Reg. 15380 (Dep't Commerce Mar. 28, 2006) (final results of changed circumstances review) (revoking...
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