Itochu Bldg. Prods. v. United States

• Decision Date: 08 April 2014
• Docket Number: Court No. 11-00208,Slip Op. 14-37
• Parties: ITOCHU BUILDING PRODUCTS, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

ITOCHU BUILDING PRODUCTS, Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 14-37 Court No. 11-00208

UNITED STATES COURT OF INTERNATIONAL TRADE

Date: April 8, 2014

Before: Timothy C. Stanceu, Judge

OPINION AND ORDER

[Remanding the final results of a changed circumstances review of an antidumping duty order on certain steel nails from China]

Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, NY, argued for plaintiff. With him on the brief were Mark E. Pardo, Joseph M. Spraragen, Andrew T. Schutz, and Bruce M. Mitchell.

Carrie A. Dunsmore, Trial Counsel, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Nathaniel J. Halvorson, Attorney-International, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.

Stanceu, Judge: This case arose from a challenge to a final determination that the International Trade Administration, U.S. Department of Commerce ("Commerce" or the "Department") issued in a "changed circumstances" review of an antidumping duty order on certain steel nails from the People's Republic of China ("China" or the "PRC"). See Certain Steel Nails From the People's Republic of China: Final Results of Antidumping Duty Changed Circumstances Review, 76 Fed. Reg. 30,101, 30,101 (May 24, 2011) ("Final Results").Commerce initiated the changed circumstances review in response to a request by one of the petitioners in the antidumping duty investigation who requested revocation of the antidumping duty order (the "Order") as to four types of steel nails. Id. Commerce agreed to the partial revocation of the Order and chose August 1, 2009 as the effective date. Id.

Plaintiff Itochu Building Products ("Itochu" or "IBP"), a U.S. importer of subject merchandise and a participant in the changed circumstances review, brought this action to contest the Department's final determination (the "Final Results"). Specifically, Plaintiff challenged the August 1, 2009 effective date, arguing that Commerce should have made the partial revocation effective as of January 23, 2008, the date of the preliminary determination in the original antidumping duty investigation and the date supported by the parties to the review. The court denied relief on plaintiff's claim on the ground that plaintiff failed to exhaust administrative remedies. Itochu Bldg. Products v. United States, 36 CIT ___, ___, 865 F. Supp. 2d 1332, 1339 (2012) ("Itochu I"), rev'd and remanded, 733 F.3d 1140 (Fed. Cir. 2013).

Before the court is the mandate issued by the U.S. Court of Appeals for the Federal Circuit ("Court of Appeals") following Itochu Bldg. Products v. United States, 733 F.3d 1140 (Fed. Cir. 2013) ("Itochu II"), which reversed the judgment the court issued in Itochu I and remanded for further proceedings. CAFC Mandate in Appeal # 13-1044 (Nov. 22, 2013), ECF No. 40. Addressing the merits of plaintiff's claim, the court now orders Commerce to reconsider the decision on the effective date of the partial revocation.

II. BACKGROUND

The background of this litigation is described in the court's prior opinion and is supplemented herein. See Itochu I, 36 CIT at ___, 865 F. Supp. 2d at 1335-36.

Commerce issued the Order on August 1, 2008.¹ Notice of Antidumping Duty Order: Certain Steel Nails From the People's Republic of China, 73 Fed. Reg. 44,961 (Aug. 1, 2008) ("Order"). On September 22, 2009, Commerce initiated the first administrative review of the Order, which pertained to entries of subject merchandise made during a period of January 23, 2008 through July 31, 2009 ("period of review" or "POR"). Initiation of Antidumping Duty & Countervailing Duty Admin. Reviews & Req. for Revocation in Part, 74 Fed. Reg. 48,224 (Sept. 22, 2009). Commerce issued the preliminary results of the firstadministrative review on September 15, 2010. Certain Steel Nails From the People's Republic of China: Notice of Prelim. Results & Prelim. Rescission, in Part, of the Antidumping Duty Admin. Review, 75 Fed. Reg. 56,070 (Sept. 15, 2010).

On February 11, 2011, while the first administrative review was ongoing, Mid Continent Nail Corporation ("Mid Continent"), a petitioner in the antidumping duty investigation, requested a review based on changed circumstances, seeking revocation of the Order as to "[a]ll unliquidated and future entries" of four types of steel nails.² Req. for Changed Circumstances Review 1-3 (Admin.R.Doc. No. 1). See Tariff Act of 1930 ("Tariff Act") § 751(b), 19 U.S.C. § 1675(b); 19 C.F.R. §§ 351.216, 351.221(c)(3).³ Mid Continent sought revocation of the Order as to these four types of nails on the ground that "the domestic industry no longer has an interest in maintaining the Order with respect these specific products." Req. for Changed Circumstances Review 4. See id. 1-2 & n.2, Attach. 1. See also 19 C.F.R. § 351.222(g)(1)(i). Mid Continent requested that the partial revocation be "effective as to all unliquidated entries back to the date of the preliminary determination in the original investigation," i.e., January 23, 2008. Req. for Changed Circumstances Review 4. See Certain Steel Nails From the People's Republic of China: Prelim. Determination of Sales at Less Than Fair Value & Partial Affirmative Determination of Critical Circumstances & Postponement of Final Determination, 73 Fed.Reg. 3,928 (Jan. 23, 2008). Two other petitioners in the antidumping duty investigation submitted comments in support of Mid Continent's requested partial revocation and revocation date. See Letter from Nat'l Nail Corp. 1-2 (Mar. 1, 2011) (Admin.R.Doc. No. 3); Letter from United Sources Inc. 1-2 (Mar. 24, 2011) (Admin.R.Doc. No. 8).⁴ Itochu also filed comments supporting Mid Continent's request, including the proposed scope and the proposed January 23, 2008 effective date. Itochu's Comments on the Changed Circumstances Review 2 (Feb. 22, 2011) (Admin.R.Doc. No. 2). On March 8, 2011, counsel for Itochu met with Commerce officials and requested designation of January 23, 2008 as the effective revocation date. Mem. of Law in Supp. of Pl.'s Rule 56.2 Mot. for J. upon the Agency R. ("Pl.'s Mem.") at Attach. 1 (Dec. 5, 2011), ECF No. 19.

Commerce issued the final results of the first administrative review on March 23, 2011, Certain Steel Nails From the People's Republic of China: Final Results of the First Antidumping Duty Admin. Review, 76 Fed. Reg. 16,379 (Mar. 23, 2011), and, in response to allegations of ministerial errors, issued amended final results on April 26, 2011, Certain Steel Nails From the People's Republic of China: Amended Final Results of the First Antidumping Duty Admin. Review, 76 Fed. Reg. 23,279 (Apr. 26, 2011). On April 21, 2011, five days before publishing the amended final results, Commerce issued a combined notice initiating an expedited changed circumstances review of the Order under 19 U.S.C. § 1675(b) and announcing the Department'spreliminary decision to revoke the Order as to four types of steel nails ("Preliminary Results"). Certain Steel Nails From the People's Republic of China: Initiation & Prelim. Results of Antidumping Duty Changed Circumstances Review , 76 Fed. Reg. 22,369, 22,369, 22,371 (Apr. 21, 2011) ("Prelim. Results"). Commerce preliminarily chose as the revocation date August 1, 2009, which it characterized as "the earliest date for which entries of certain steel nails have not been subject to a completed administrative review." Id. at 22,371. Commerce invited interested parties to comment on the Preliminary Results, id., but no party commented within the specified period, Final Results, 76 Fed. Reg. at 30,101. On May 24, 2011, Commerce issued the Final Results, in which it revoked the Order as to the four types of steel nails, effective August 1, 2009.⁵ Id. at 30,102.

Challenging the Department's selection of the August 1, 2009 effective date, plaintiff brought this action by filing a summons on June 22, 2011 and a complaint on July 21, 2011. Summons, ECF No. 1; Compl., ECF No. 8. Plaintiff filed a motion for judgment on the agency record, Pl.'s Rule 56.2 Mot. for J. upon the Agency R. 1 (Dec. 5, 2011), ECF No. 19 ("Pl.'s Mot."); Pl.'s Mem. 1, which defendant opposed, Def.'s Memo. in Opp'n to Pl.'s Rule 56.2 Mot. for J. upon the Agency R. 1 (Feb. 2, 2012), ECF No. 23 ("Def.'s Opp'n"). On March 28, 2012, plaintiff made a submission advising the court of the intervening decision in Heveafil Sdn. Bhd v. United States, 36 CIT ___, Slip Op. 12-38 (Mar. 21, 2012) ("Heveafil"). Letter Advising the Court of the Recent Decision in Heveafil Sdn. Bhd v. United States, Slip Op. 12-38 (Mar. 28, 2012), ECF No. 29. On September 13, 2012, the court held oral argument.

Concluding that Itochu failed to exhaust its administrative remedies, the court denied relief on plaintiff's claim. Itochu I, 36 CIT at ___, 865 F. Supp. 2d at 1337-38 (citing Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375, 1383-84 (Fed. Cir. 2008)). The court reasoned that Itochu had waived its objection to the August 1, 2009 date when it declined to comment on the Department's choice of this revocation date in the Preliminary Results despite the Department's specifically having requested comment on this issue. Id.

On appeal, the Court of Appeals reversed the court's judgment, determining that application of the exhaustion doctrine was not "'appropriate'" because "[i]n the circumstances here, requiring exhaustion served no discernible practical purpose and would have risked harm to Itochu," Itochu II, 733 F.3d at 1142, by delaying the changed circumstances review, id. at 1147. The Court of Appeals determined that Commerce had sufficient opportunity to consider Itochu's objections to the August 1, 2009 effective date due to Itochu's argument in favor of the earlierdate before Commerce published...