Industria de Fundicao Tupy v. Brown
| Decision Date | 12 October 1995 |
| Docket Number | Slip Op. 95-170. Court No. 94-09-00528. |
| Parties | INDUSTRIA DE FUNDICAO TUPY; American Iron & Alloys Corporation, Plaintiffs, v. Ronald BROWN, Secretary of Commerce; United States Department of Commerce; The United States, Defendants, Grinnell Corporation, Ward Manufacturing, Inc. and Stockham Valves & Fittings Co., Inc., Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Sonnenberg, Anderson & Rodriquez, Chicago, IL (Philip Yale Simons; of counsel: Jerry P. Wiskin, Steven P. Sonnenberg and Jacqueline M. Paez) for plaintiff.
Frank W. Hunger, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (A. David Lafer, Senior Trial Counsel and Hal S. Shapiro); of counsel: Michelle K. Behaylo, Attorney-Advisor, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, Washington, DC, for defendants.
McKenna & Cuneo, Washington, DC (Peter Buck Feller and Lawrence J. Bogard) for defendant-intervenors.
Defendants move to dismiss this action. Plaintiffs, Industria de Fundicao Tupy and American Iron & Alloys Corporation (collectively "Tupy"), oppose defendants' motion and request, in turn, that the Court award summary judgment and issue orders (1) enjoining the United States Department of Commerce, International Trade Administration ("Commerce") from conducting an administrative review of the Antidumping Duty Order: Malleable Cast Iron Pipe Fittings From Brazil ("Antidumping Duty Order" or "Order"), 51 Fed.Reg. 18,640 (1986), for May 1, 1993, through April 30, 1994; (2) requiring Commerce to revoke the Order; and (3) requiring Commerce to end the suspension of liquidation of Brazil-origin imports subject to the Order. Plaintiffs' Brief in Opposition to Defendants' Motion to Dismiss and Cross-Motion for Summary Judgment ("Tupy's Brief") at 1-19.
On May 21, 1986, Commerce issued an antidumping duty order on certain malleable cast iron pipe fittings from Brazil. See Antidumping Duty Order, 51 Fed.Reg. at 18,640. May is the annual anniversary month of the Order for purposes of 19 C.F.R. § 353.25(d) (1991).1
Commerce did not conduct administrative reviews of the Order for the period of May 21, 1986, through April 30, 1987, or the period of May 1, 1987, through April 30, 1988. Complaint ¶ 10.
On May 3, 1989, during the Order's third annual anniversary month, Commerce published a notice in the Federal Register informing interested parties of the opportunity to request an administrative review of the Order for the period May 1, 1988, through April 30, 1989. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 54 Fed.Reg. 18,918 (1989). No party requested an administrative review.
On May 8, 1990, Commerce published a similar notice regarding May 1, 1989, through April 30, 1990. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 55 Fed.Reg. 19,093 (1990). Again, no party sought a review.
On May 2, 1991, during the Order's fifth annual anniversary month, Commerce published a notice of intent to revoke the Order because no annual reviews had been requested for the previous four years. See Malleable Cast-Iron Pipe Fittings From Brazil, Intent to Revoke Antidumping Order, 56 Fed.Reg. 20,193 (1991). See also 19 C.F.R. § 353.25(d)(4). On May 30, 1991, the Cast Iron Pipe Fittings Committee, the petitioner in the original investigation, objected to the proposed revocation. On June 26, 1991, Commerce published its determination not to revoke the Order. See Malleable Cast Iron Pipe Fittings From Brazil; Determination Not to Revoke Antidumping Duty Order, 56 Fed.Reg. 29,220 (1991).
In 1992, Commerce did not publish a notice of intent to revoke the Order. Complaint ¶ 21. No request for a review or objection to a proposed revocation was made by an interested party in 1992, and no party objected or complained about Commerce's failure to publish a notice of intent to revoke in 1992. Complaint ¶¶ 22, 23.
On June 21, 1993, as no administrative review had been requested in the previous four anniversary months, Commerce published a notice of intent to revoke the Order. See Malleable Cast Iron Pipe Fittings From Brazil; Intent to Revoke Antidumping Duty Order, 58 Fed.Reg. 33,796 (1993). On July 21, 1993, several domestic interested parties objected to Commerce's proposed revocation. Consequently, on September 30, 1993, Commerce published a notice of intent not to revoke the Order. See Malleable Cast Iron Pipe Fittings From Brazil; Determination Not to Revoke Antidumping Duty Order ("Determination Not to Revoke Order"), 58 Fed.Reg. 51,057 (1993). Plaintiffs did not appeal Commerce's determination not to revoke.
On May 3, 1994, Commerce published a notice of intent to revoke the Order if no interested party requested an administrative review or objected to the proposed revocation by May 31, 1994. See Intent to Revoke Antidumping Duty Orders and Findings, 59 Fed.Reg. 22,821 (1994). On May 4, 1994, three domestic producers of malleable cast iron pipe fittings requested an administrative review for the period of May 1, 1993, through April 30, 1994. Commerce initiated the requested review. See Initiation of Antidumping Duty Administrative Reviews and Requests for Revocation in Part, 59 Fed. Reg. 36,160 (1994). On July 22, 1994, to facilitate this administrative review, Commerce issued Tupy a questionnaire. Complaint ¶ 43. The response date was September 20, 1994, day 60 of the annual review. Id.
On August 8, 1994, Tupy requested that Commerce terminate the continuing administrative review, revoke the Order, and instruct the United States Customs Service to end suspension of liquidation of the subject merchandise. Complaint ¶ 44. Tupy initiated this action on September 9, 1994, and obtained a temporary restraining order ("TRO") from the court enjoining Commerce from pursuing the administrative review. On October 6, 1994, the Court dissolved the TRO and denied plaintiffs' motion for a preliminary injunction. See Industria de Fundicao Tupy v. Ronald Brown (Tupy), 18 CIT ___, 866 F.Supp. 565 (1994).
On October 31, 1994, counsel for Tupy wrote Commerce, stating:
Our clients, Industria De Fundicao Tupy and American Iron and Alloys Corporation, respectfully decline to provide a response to the International Trade Administration's questionnaire in the captioned review. Our clients believe that the disruption of its ongoing business, the fact that its records are not computerized in the format required by the International Trade Administration, and the potential benefits derived from its insignificant exports to the United States do not justify the time and expense related to compiling the information and completing the questionnaire.
Public Record Doc. No. A-351-505, Letter to Bernard T. Carreau.
In its opposition to Commerce's motion to dismiss and cross-motion for summary judgment, Tupy challenges the Court's holding in Tupy, 18 CIT at ___, 866 F.Supp. at 565 that judicial review is unavailable because this action is time-barred pursuant to 19 U.S.C. § 1516a (1988) and 28 U.S.C. § 1581(c) (1988). Tupy attempts to convince the Court to permit judicial review pursuant to 28 U.S.C. § 1581(i) (1988).
Essentially, Tupy advances two arguments. First, Tupy contends that Commerce's decision not to revoke the antidumping duty order, published in the Federal Register on September 30, 1993, was not a "determination" within the meaning of 19 U.S.C. § 1516a. Thus, claims Tupy, the notice could not be challenged under 19 U.S.C. § 1516(a)(2)(ii) and 28 U.S.C. § 1581(c). In support, Tupy argues that only agency determinations which are specifically enumerated in various clauses of subparagraph (B) of § 1516a are subject to the court's jurisdiction pursuant to that provision. According to Tupy, section 1516a contemplates administrative reviews or proceedings concerning the review of factual information supplied to Commerce, whereas, Commerce's notice was a simple ministerial act acknowledging the receipt of an interested party's request that the Order not be revoked. Tupy also argues that, as Commerce's determination not to revoke the Order was not required by the statute or Commerce's regulations, the notice was merely a gratuitous act. Tupy argues that it follows, a priori, that the decision was not encompassed by, and not reviewable under, 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c). Tupy's Brief at 5-13. Tupy contends that this action arises from the U.S. antidumping laws concerning a matter other than those reviewable under 19 U.S.C. § 1516a. Id. at 13.
Second, Tupy submits that, as a matter of law, Commerce was required to revoke the Order pursuant to 19 C.F.R. § 353.25(d)(4)(iii) because Commerce received no objections to revocation and no requests for annual review during the Order's fifth anniversary month. Therefore, argues Tupy, all of Commerce's acts after May 31, 1993, relating to the Order are ultra vires and a nullity without force or legal effect. Id. at 14-19. In particular, Tupy argues that Commerce's notice of intent not to revoke the Order was invalid because it was based on an untimely notice of intent to revoke. Id. at 14-15. For support, Tupy relies on Kemira Fibres Oy v. United States (Kemira I), 18 CIT ___, 858 F.Supp. 229 (1994) and Kemira Fibres Oy v. United States (Kemira II), 18 CIT ___, 861 F.Supp. 144 (1994) , rev'd, 61 F.3d 866 (Fed.Cir.1995). Id. at 14-18.
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San Vicente Camalu Spr De Ri v. U.S.
...findings specified in the statute. Industria Fundicao Tupy v. Brown, 18 CIT 933, 940-41, 866 F.Supp. 565, 571-72 (1994) ("Tupy I"). Indeed, Tupy II expressly rejected the argument that jurisdiction did not lie under 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c) because Commerce's decision not t......