Kemira Fibres Oy v. US, Slip Op. 94-120. Court No. 94-07-00405.

Decision Date26 July 1994
Docket NumberSlip Op. 94-120. Court No. 94-07-00405.
Citation858 F. Supp. 229,18 CIT 687
PartiesKEMIRA FIBRES OY, Plaintiff, v. UNITED STATES, et al., Defendants.
CourtU.S. Court of International Trade

Arent Fox Kintner Plotkin & Kahn, James H. Hulme and Christine L. Herrell, Washington, DC, for plaintiff.

Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Velta A. Melnbrencis, Asst. Dir., and Dean L. Grayson, Washington, DC (Anna Y.M. Park, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, of counsel), for defendants.

OPINION

TSOUCALAS, Judge:

Pursuant to Rule 65(a) of the Rules of this Court, Kemira Fibres Oy ("Kemira") filed a motion requesting that this court grant a temporary restraining order ("TRO") and a preliminary injunction enjoining the Department of Commerce, International Trade Administration ("Commerce"), from conducting an administrative review of viscose rayon staple fiber ("fiber") exported from Finland by Kemira for the period 1993-94, in connection with the antidumping finding ("Finding") issued in Viscose Rayon Staple Fiber From Finland, 44 Fed.Reg. 17,156 (1979). Plaintiff seeks this relief pending the entry of final judgment on its request for a permanent injunction and declaratory judgment. The Court granted plaintiff's motion for a TRO on July 13, 1994, and scheduled a hearing on plaintiff's motion for a preliminary injunction. Subsequently, on July 19, 1994, a full hearing was held to determine whether a preliminary injunction should issue.

Kemira Fibres Oy is the corporate successor to Kemira Oy Sateri, the respondent in the original antidumping investigation from which an antidumping duty order ("Order") issued. The domestic party who petitioned for the administrative review which resulted in the 1979 Finding is no longer in existence. Lenzing Fibers Corporation ("Lenzing") and Courtaulds Fiber Inc. ("Courtaulds"), two parties currently interested in maintaining the Order, and who, to facilitate that result, have petitioned Commerce for an administrative review, are new entrants to the fiber industry.

Background

On March 21, 1979, the United States Treasury Department issued a finding of dumping with respect to the fiber. Viscose Rayon Staple Fiber From Finland, 44 Fed. Reg. 17,156. Kemira Oy Sateri, the only known exporter of the fiber from Finland to the United States, was the sole respondent.

Effective January 2, 1980, authority for administering the antidumping law was transferred from the Treasury Department to the United States Department of Commerce. Commerce conducted administrative reviews of the fiber until 1988. It received no requests for an administrative review during the anniversary month in 1989, 1990, 1991, and 1992 and, consequently, conducted no reviews through February, 1992.

On March 12, 1993, Commerce published a notice offering interested parties an opportunity to request an administrative review of the fiber for the period March 1, 1992, through February 28, 1993. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 58 Fed.Reg. 13,583 (1993). Commerce received no requests for an administrative review by the last day of the anniversary month in March 1993.

On June 3, 1993, Commerce published a notice of its intent to revoke the Finding on the fiber. Rayon Staple Fiber From Finland; Intent to Revoke Antidumping Finding, 58 Fed.Reg. 31,504. The notice stated, "if no domestic interested party objects to this intent to revoke within 30 days from June 3, 1993, Commerce shall conclude that the finding is no longer of interest to interested parties and shall proceed with revocation." Id. at 31,505.

By letter, dated June 28, 1993, Lenzing and Courtaulds, the only two U.S. domestic producers of rayon staple fiber, responding to the June 3, 1993 notice, objected to the proposed revocation.

On March 4, 1994, Commerce published a notice offering interested parties an opportunity to request an administrative review of the fiber for the period March 1, 1993, through February 28, 1994. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 59 Fed.Reg. 10,368 (1994). In response to the March 4, 1994 notice, on March 29, 1994 — within the anniversary month of the dumping Finding, Lenzing and Courtaulds requested that Commerce conduct an administrative review with respect to Kemira's imports.

On March 29, 1994, Commerce published a notice of its intent to revoke the dumping Finding and the Order on the fiber, Intent to Revoke Antidumping Duty Orders and Findings, 59 Fed.Reg. 14,608 (1994). In response, on April 11, 1994, Lenzing and Courtaulds objected to the proposed revocation.

For the purpose of conducting an administrative review, on April 21, 1994, Commerce sent Kemira a questionnaire; the response due date was June 6, 1994. On May 25, 1994, Kemira requested an extension of time to submit its response; the request was granted and the new response due date was June 28, 1994.

On May 12, 1994, Commerce published a notice of its intent to initiate an administrative review of the fiber for the period March 1, 1993, through February 28, 1994. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 59 Fed.Reg. 24,683 (1994).

On June 23, 1994, Kemira protested Commerce's decision to initiate this review and, concurrently, requested another extension of time to file its questionnaire response. An extension of time was granted; the new response date was July 13, 1994.

On July 13, 1994, Kemira submitted its questionnaire response. Subsequently, also on July 13, 1994, Kemira withdrew its questionnaire response and filed a motion for a TRO and a preliminary injunction pending resolution of litigation with respect to Commerce's failure to revoke the 1979 Finding and Order on the fiber.

Discussion

Kemira carries the burden of demonstrating that the Court of International Trade has jurisdiction to rule on plaintiff's claim. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Smith Corona Group, SCM Corp. v. United States, 8 CIT 100, 102, 593 F.Supp. 415, 417-18 (1984). Plaintiff argues that the court has jurisdiction pursuant to 28 U.S.C. § 1581(i) (1988).1 Kemira claims jurisdiction under subparagraphs (1), (2) and (4) of this provision. This "residual" jurisdiction provision grants exclusive jurisdiction to the Court of International Trade concerning issues relating to the antidumping duty law which are not specifically covered by other subparagraphs of section 1581. Plaintiff contends that review under other subparagraphs of section 1581 would be manifestly inadequate as participation in an administrative review will cause it irreparable harm.

Defendant maintains that plaintiff has an adequate remedy under 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a.2 That is, defendant contends that if plaintiff waits until the conclusion of the 1993-94 administrative review before seeking judicial review and any injunctions that may be appropriate, plaintiff may proceed under 19 U.S.C. § 1516a(c)(2) to prevent the assessment of duties on entries covered by the administrative review. In the interim, defendant states that, liquidation of plaintiff's entries will be suspended.

Section 1581(i) may be invoked as a basis for subject matter jurisdiction where another subsection of § 1581 is unavailable or when the remedy provided by the other subsection would be "manifestly inadequate." See Asociacion Colombiana de Exportadores de Flores (Asocoflores) v. United States, 13 CIT 584, 717 F.Supp. 847 (1989), aff'd, 903 F.2d 1555 (Fed.Cir.1990). See also Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir. 1987), cert. denied, 484 U.S. 1041, 108 S.Ct. 773, 98 L.Ed.2d 859 (1988). In Asocoflores, the court found jurisdiction under § 1581(i) where plaintiff sought to enjoin Commerce from conducting an allegedly unlawful administrative review and argued that Commerce had acted in contradiction to its own regulations when it initiated the review. In that case, plaintiffs alleged hardship in expending time, effort and money to participate in the review. The court found that the remedy afforded pursuant to § 1581(c), after a final determination was manifestly inadequate because, upon conclusion of the review, plaintiffs' challenge would be moot. Asocoflores, 13 CIT at 586-87, 717 F.Supp. at 850. This action is similar to the one that confronted the court in the Asocoflores case, in that, Kemira challenges the legality of the proposed administrative review and seeks relief from the requirement of participating in a review which it deems improper according to Commerce's own regulations. Further, in this action plaintiff has objections grounded in due process. Moreover, this dispute does not concern the matter of which rates will ultimately apply to plaintiff's fiber, but rather, concerns the question of whether plaintiff must participate in a review of its fiber exports at all. Given the clear showing in this case that such a review is not appropriate, this is not an insubstantial concern.

Therefore, the Court finds that jurisdiction exists pursuant to 28 U.S.C. § 1581(i).

Plaintiff's Motion for Preliminary Injunctive Relief

Having determined that the court possesses jurisdiction pursuant to section 1581(i), the Court addresses plaintiff's motion for injunctive relief. In order for a preliminary injunction to issue, plaintiff must demonstrate: (1) that it has a likelihood of success on the merits; (2) that there is a threat of immediate and irreparable harm to plaintiff if relief is not granted; (3) that the balance of the hardships to the parties favors issuance of the preliminary injunction; and (4) that the public interest would be better served by a grant of the relief...

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