Daido Corp. v. US

• Decision Date: 25 November 1992
• Docket Number: Court No. 92-07-00429.
• Citation: 807 F. Supp. 1571,16 CIT 987
• Parties: DAIDO CORPORATION, Daido Kogyo Co., Ltd., and Enuma Chain Manufacturing Co., Ltd., Plaintiffs, v. The UNITED STATES; the Department of Commerce; Barbara H. Franklin, Secretary of Commerce; Timothy J. Hauser, Acting UnderSecretary of Commerce for International Trade; Alan Dunn, Assistant Secretary of Commerce for Import Administration, Defendants, and The American Chain Association, Intervenor-Defendant.
• Court: U.S. Court of International Trade

807 F. Supp. 1571

16 CIT 987

DAIDO CORPORATION, Daido Kogyo Co., Ltd., and Enuma Chain Manufacturing Co., Ltd., Plaintiffs, v. The UNITED STATES; the Department of Commerce; Barbara H. Franklin, Secretary of Commerce; Timothy J. Hauser, Acting UnderSecretary of Commerce for International Trade; Alan Dunn, Assistant Secretary of Commerce for Import Administration, Defendants, and The American Chain Association, Intervenor-Defendant.

Court No. 92-07-00429.

United States Court of International Trade.

November 25, 1992.

Tanaka Ritger & Middleton, Patrick F. O'Leary, Washington, DC, for plaintiffs.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice and, Jeffrey M. Telep, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC (Patrick Gallagher, of counsel), for defendants.

Covington & Burling, David E. McGiffert and David R. Grace, Washington, DC, for intervenor-defendant.

OPINION AND ORDER

AQUILINO, Judge:

The background of this action, commenced by the plaintiffs for extraordinary equitable relief, is set forth in the court's slip op. 92-129, 16 CIT ___, 796 F.Supp. 533 (1992), familiarity with which is presumed. As stated therein, the action has its genesis in the Treasury Department's finding of dumping sub nom. Roller Chain, Other Than Bicycle, From Japan, 38 Fed.Reg. 9,926 (April 12, 1973), and plaintiffs' subsequent, continuing efforts to obtain revocation of this finding before the International Trade Administration, U.S. Department of Commerce ("ITA").

According to Roller Chain, Other Than Bicycle, From Japan; Final Results of Antidumping Duty Administrative Review and Determination Not To Revoke in Part, 56 Fed.Reg. 50,092 (Oct. 3, 1991), the ITA decided not to effectuate a 1977 determination by Treasury to revoke as against the plaintiffs, pending conduct of a review of the period April 1, 1990 to March 31, 1991 pursuant to 19 U.S.C. § 1675. However, on May 22, 1992 the ITA

notified plaintiffs that there would be a delay in the 1990-91 review due to lack of funding and further ... announced initiation of a new administrative review for the April 1, 1991-March 31, 1992 period ... requested by the American Chain Association.... Consequently, ... Commerce sent plaintiffs a 1991-92 review questionnaire with a response deadline of July 6, 1992. Plaintiffs' request ... for deferral of the questionnaire responses pending completion of the 1990-91 review and finalization of the revocation was rejected by Commerce....

16 CIT at ___, 796 F.Supp. at 535. This action ensued, with plaintiffs' seeking relief by way of a temporary restraining order, preliminary injunction and/or writ of mandamus.

Among other things in slip op. 92-129, the court concluded that there is no dispute as to jurisdiction pursuant to 28 U.S.C. § 1581(i)(4). 16 CIT at ___, 796 F.Supp. at 536. Also, defendants'

long-standing disregard for statutory deadlines in administrative reviews has repeatedly been judicially condemned and required judicial intervention.... Here, plaintiffs' urgent need for a writ of mandamus has to a large extent been obviated by Commerce's commitment to plaintiffs and to the court at the hearing on July 8, 1992 to make the necessary allocation of funding to the 1990-91 review and adhere to the following timetable: September 1, 1992 for the preliminary results; November 15, 1992 for the final results.... Plaintiffs have accepted the foregoing timetable. Consequently, imposition of the extraordinary remedy of mandamus is deemed unwarranted at this time. However, the court will accede to plaintiffs' request to retain jurisdiction in this case and plaintiffs' application for mandamus will be held in abeyance pending the outcome of Commerce's conformance to the stipulated deadlines for issuing the preliminary and final results of the review.

Id. (citations omitted).

As for plaintiffs' application for a preliminary injunction against ITA conduct of an administrative review for 1991-92 before final determination of whether or not to revoke based on the review results for the preceding year, the court denied the relief requested, albeit on condition that,

should plaintiffs claim during the pendency of this action that the alleged threat of retaliatory refusal to revoke for failure to answer the questionnaires by the extended deadline has materialized in the course of the 1990-91 review, this court will reconsider plaintiffs' requested injunctive and mandamus relief for such retaliation.

16 CIT at ___, 796 F.Supp. at 538.

I

Since issuance of slip op. 92-129, the ITA has published Roller Chain, Other Than Bicycle, From Japan; Preliminary Results of Antidumping Finding Administrative Review, 57 Fed.Reg. 41,471, 41,472 (Sept. 10, 1992), finding weighted-average margins for 1990-91 of 0.02 percent for Daido Kogyo and 0.00 for Enuma and reciting that it had been the agency's

original intention to revoke the finding with respect to Daido and Enuma subsequent to completion of the administrative review of the 1986-1987 period.... However, in Freeport Minerals Co. v. United States, 776 F.2d 1029 (Fed.Cir., 1985), the Court ... emphasized the need to base revocation determinations on "current data", and held that such determinations should not be based on information more than three years old. By the time the final results of the 1986-1987 review were published ..., the data on which the tentative revocation would be based were more than four years old. Accordingly, we concluded at that time that we would conduct a review of a more recent period before deciding whether to revoke the finding with respect to these two companies.

Notwithstanding this stated, original intention, plus written company commitments to an immediate suspension of liquidation and reinstatement of the finding of dumping should sales at less than fair value resume, the ITA went on to report:

... Because of confidential information in our possession, we are unable to make a determination at this time that sales at less than fair value will not occur in the future. Therefore, we will not consider revocation at this time.

Id., 57 Fed.Reg. at 41,473.

The plaintiffs have returned to court with a motion for release of the confidential information referred to, complaining that "this hurdle seems insurmountable because the ITA has consistently rebuffed their efforts to gain access to this so-called `confidential' information."¹ In addition, they have returned with a renewed application for a temporary restraining order and preliminary injunction, posturing that the ITA "has done almost everything imaginable to prevent them from getting a fair shot at revocation."²

Though plaintiffs' papers are replete with such hyperbole, the court discerned enough in them to warrant issuance of an order restraining the defendants temporarily from taking any further steps on administrative review of either 1990-91 or 1991-92 and also directing the government to show cause why it should not be enjoined preliminarily (1) from issuing a final determination for 1990-91 "until plaintiffs have the opportunity to challenge, through the briefing and hearing process, the so-called `confidential' information" and (2) from requiring responses to questionnaires issued for 1991-92. A hearing has since been held in open court on these issues.

II

Attached to a case brief submitted by the American Chain Association to the ITA in conjunction with administrative review of 1986-87 was a document apparently written months earlier by an unnamed individual and received by its attorneys concerning questionnaire responses filed by respondents Daido et al. Counsel's transmittal represented the information to be

highly sensitive in nature, and its disclosure could ... prove deleterious should the Commerce Department decide to inquire further into the matter.... Public disclosure at this juncture could needlessly prejudice and/or embarrass Daido Kogyo, Enuma Chain, and Daido Corporation (U.S.A.). In light ... of these considerations, the ACA submits that the information qualifies for confidential treatment under 19 C.F.R. § 353.32(a). ... In view of the ... Commerce Department's policy interest in encouraging knowledgeable parties to come forward in antidumping proceedings, information that could be used to identify the author of the letter deserves the strictest protection. We therefore request that this information be exempt from release under Administrative Protective Order.³

The agency acquiesced in this request, deciding not to release the information on grounds that it has authority to exempt from disclosure matter of a type for which there is a clear and compelling need to withhold, citing 19 C.F.R. §§ 353.33 and 353.34(a), and that the information sought "is in fact of such a highly sensitive nature that it clearly should not be released."⁴ The government continues to oppose discovery, contending now that the information the plaintiffs seek should be protected "pursuant to the informant's privilege, the investigative files privilege, and because of a clear and compelling need to prevent disclosure."⁵

A

The Trade Agreements Act of 1979, as amended, provides for disclosure under protective order of confidential information submitted to the ITA, in general, as follows:

Upon receipt of an application ..., the administering authority ... shall make all business proprietary information presented to, or obtained by it, during a proceeding (except privileged information, classified information, and specific information of a type for which there is a clear and compelling need to withhold from disclosure) available to interested parties who are parties to the proceeding under a protective order ... regardless of when the information is submitted during a proceeding....

19 U.S.C. § 1677f(c)(1)(A).

After the plaintiffs had become formal parties to the proceedings for administrative review...