Cosco Home and Office Products v. U.S.
| Decision Date | 07 December 2004 |
| Docket Number | Slip Op. 04-154.,Court No. 03-00928. |
| Citation | 350 F.Supp.2d 1294 |
| Parties | COSCO HOME AND OFFICE PRODUCTS, and Feili Furniture Development Limited, Feili Group (Fujian) Co., Ltd., New-Tec Integration (Xiamen) Co., Ltd., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant, and Meco Corporation, Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
Collier Shannon Scott, P.L.L.C. (Laurence J. Lasoff, Mary T. Staley, Gina N. Dennis), Washington, D.C., for Plaintiff, Cosco Home and Office Products.
White & Case LLP (William J. Clinton, Adams C. Lee, Jonathan Seiger), Washington, D.C., for Plaintiffs, Feili Furniture Development Limited, Feili Group (Fujian) Co., Ltd., and New Tec Integration (Xiamen) Co., Ltd.
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Jeanne M. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Michael D. Panzera, of counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice; Paul Kovac, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice; Jonathan J. Engler, Senior Attorney, Office of Chief Counsel for Import Administration, United States Department of Commerce, for Defendant, of counsel.
Akin Gump Strauss Hauer & Feld (Warren E. Connelly, Anne K. Cusick), Washington, D.C., for Defendant-Intervenor, Meco Corporation.
In this consolidated action, Plaintiffs challenge the United States Department of Commerce's ("Commerce") decision to rescind its administrative review as to Feili Furniture Development Limited, Feili Group (Fujian) Co., Ltd., and New-Tec Integration (Xiamen) Co., Ltd. (collectively "Feili and New-Tec") in Certain Folding Metal Tables and Chairs from the People's Republic of China: Notice of Partial Rescission of First Antidumping Duty Administrative Review, 68 Fed.Reg. 66,397 (Nov. 26, 2003) ("Partial Rescission of Review"). The issue before this Court is whether Plaintiffs Feili and New-Tec timely filed their request for review. Plaintiffs filed Motions for Judgment on the Agency Record, a Motion to Supplement the Administrative Record ( ), and an Amended Consent Motion for Oral Argument. This Court denies Plaintiffs' motions and holds that Commerce's Partial Rescission of Review is supported by substantial evidence on the record or otherwise in accordance with law.
In analyzing a challenge to Commerce's final determination in an antidumping duty administrative review, the court will uphold Commerce's determination unless it is unsupported by substantial evidence on the record or otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i) (2000). Substantial evidence "is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) (citations omitted). Moreover, "the court may not substitute its judgment for that of the [agency] when the choice is `between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'" Am. Spring Wire Corp. v. United States, 8 CIT 20, 22, 590 F.Supp. 1273, 1276 (1984) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 95 L.Ed. 456 (1951)).
This Court will defer to the agency interpretation of a statute it administers so long as it is reasonable. Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034, 1038 (Fed.Cir.1996) (quoting Koyo Seiko Co. Ltd. v. United States, 36 F.3d 1565, 1573 (Fed.Cir.1994)). Furthermore, "[s]tatutory interpretations articulated by Commerce during its antidumping proceedings are entitled to judicial deference under Chevron." Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372, 1382 (Fed.Cir.2001) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).
On June 27, 2002, Commerce issued Antidumping Duty Order: Folding Metal Tables and Chairs from the People's Republic of China, 67 Fed.Reg. 43,277 (June 27, 2002). On June 2, 2003, Commerce published Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 68 Fed.Reg. 32,727 (June 2, 2003) ("Notice of Opportunity"). In response to that notice, Defendant-Intervenor Meco Corporation ("Defendant-Intervenor" or "Meco") in this case, filed a timely request for review. (Letter from Meco to Commerce of 6/30/03.) Defendant-Intervenor's petition included Plaintiffs Feili and New-Tec. (Id.) On July 29, 2003, Commerce published Initiation of Antidumping and Countervailing Duty Administrative Reviews, Requests for Revocation in Part and Deferral of Administrative Reviews, 68 Fed.Reg. 44,524 (July 29, 2003) ("Notice of Initiation").
On October 21, 2003, when Defendant-Intervenor contacted Feili and New-Tec regarding their review request, Feili and New-Tec apparently realized that "a copy of [their] official stamped request for review was not in [Commerce's] Central Records Unit" in compliance with 19 C.F.R. § 351.103(b). (Letter from White & Case to Commerce of 10/31/03, at 2.) On October 27, 2003, Defendant-Intervenor timely requested that Commerce partially rescind the review for products manufactured or exported by Feili and New-Tec. (Letter from Akin Gump Strauss Haeur & Feld to Commerce of 10/27/03.) On October 30, 2003, after receiving Defendant-Intervenor's request for partial rescission, Commerce sent a letter to Feili and New-Tec asking that they produce a copy of an official stamped request for review. (Letter from Commerce to White & Case of 10/30/03.) In response to Commerce's letter, Feili and New-Tec admitted that they had "not yet found a copy of the official stamped request for review" and had "not yet found evidence that the request had been appropriately served on all interested parties." (Letter from White & Case to Commerce of 10/31/03, at 2.)
On November 3, 2003, Cosco Home and Office Products ("Cosco"), an interested party in the underlying proceeding and plaintiff in this case, requested that Commerce continue the review as to Feili and New-Tec. (Letter from Collier Shannon Scott to Commerce of 11/3/03.) Commerce declined Cosco's request because Feili and New-Tec's failed to properly file. On November 26, 2003, Commerce announced its decision to rescind review as to Feili and New-Tec by publishing Partial Rescission of Review. Cosco filed a separate appeal from Feili and New-Tec. This Court granted a consent motion to consolidate these appeals. It is undisputed that an official request for review by Feili and New-Tec is not part of the administrative record in this case.
Plaintiff Cosco states that Feili and New-Tec intended to file a request for an administrative review, although there was apparently some defect with the official filing of that request. (Pl.'s Br. in Supp. of Pl.'s Rule 56.2 Mot. for J. upon the Agency R. ("Cosco 56.2 Br.") at 14.) Plaintiffs emphasize that Commerce had the courtesy copy of [Feili and New-Tec's] June 30, 2003 review request. (Feili/New-Tec Suppl. Mot. at 7; Cosco 56.2 Br. at 9.) Plaintiffs contend that Commerce may continue a review where it is aware of a party's interest, and in this case, Commerce was aware of Feili and New-Tec's interest based on the courtesy copy of their review request. (Feili/New-Tec 56.2 Mem. at 14, 16; Cosco 56.2 Br. at 14, 17-18.) Plaintiffs Feili and New-Tec assert that all information presented to or obtained by Commerce is part of the administrative record and request that this Court grant their Motion to Supplement the Administrative Record with the courtesy copy of the review request. (Feili/New-Tec Suppl. Mot. at 13.)
Plaintiff Cosco points out that the statute requires Commerce to conduct a review "if a request for such a review has been received and after publication of notice of such review in the Federal Register." (Cosco 56.2 Br. at 15-16 (quoting 19 U.S.C. § 1675(a)(1)).) Plaintiff Cosco urges that the courtesy copy was "received" by Commerce and therefore the statute's filing requirement was met. (Cosco Reply Br. at 6.) Plaintiffs contend that Commerce's decision to rescind the review is without merit because Commerce used information from Feili and New-Tec's courtesy copy of the review request. (Feili/New-Tec 56.2 Mem. at 9; Cosco 56.2 Br. at 10.) Plaintiffs urge this Court to note that the Notice of Initiation "specifically identified the companies [that were] identified in the request filed by Feili and New-Tec, not the request filed by Meco." (Cosco 56.2 Br. at 16 (citing Notice of Initiation, 68 Fed.Reg. at 44, 525);1 Feili/New-Tec 56.2 Mem. at 11-12.)
Plaintiffs contend that Defendant violated Feili and New-Tec's due process rights by failing to notify the parties of the filing defects. (Feili/New-Tec 56.2 Mem. at 24; Cosco 56.2 Br. at 39.) Furthermore, Plaintiff Cosco asserts that because Commerce relied on the courtesy copy and a Commerce analyst failed to notify Feili and New-Tec's counsel of filing defects during a telephone conversation, Commerce should be estopped from rescinding review as to Feili and New-Tec. (Cosco 56.2 Br. at 29-31.) Plaintiffs further assert that Commerce broke with its past practice of exercising discretion to continue reviews despite improper filing, citing an apparent defective filing of another respondent, Wok...
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