Kemira Fibres Oy v. US

• Decision Date: 08 September 1994
• Docket Number: Slip Op. 94-139. Court No. 94-07-00405.
• Citation: 861 F. Supp. 144
• Parties: KEMIRA FIBRES OY, Plaintiff, v. UNITED STATES, et al., Defendants.
• Court: U.S. Court of International Trade

861 F. Supp. 144

KEMIRA FIBRES OY, Plaintiff, v. UNITED STATES, et al., Defendants.

Slip Op. 94-139. Court No. 94-07-00405.

United States Court of International Trade.

September 8, 1994.

Arent Fox Kintner Plotkin & Kahn, Washington, DC (Christine L. Herrell, of counsel), James H. Hulme, 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. Director, and Dean L. Grayson, of counsel), Anna Y.M. Park, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, for defendants.

OPINION

TSOUCALAS, Judge:

On July 26, 1994, the Court issued Kemira Fibres Oy v. United States, 18 CIT ___, 858 F.Supp. 229, and an accompanying order granting plaintiff's motion for a preliminary injunction enjoining the United States Department of Commerce, International Trade Administration ("Commerce"), from conducting an administrative review for 1993-94 with respect to Viscose Rayon Staple Fiber From Finland, 44 Fed.Reg. 17,156 (1979). This injunctive relief was granted pending final judgment in plaintiff's civil action which challenges Commerce's failure to revoke the 1979 antidumping duty order (the "Order") with respect to viscose rayon staple fiber from Finland (the "fiber").

Kemira Fibres Oy, Slip Op. 94-120, disposed of the merits of plaintiff's action and stated that, unless facts contradicting or explaining the facts in the decision were submitted within 10 days of the date the opinion was entered, the Court would deem that it had all of the facts on the case and would issue a declaratory judgment in plaintiff's civil action.

Background

On March 21, 1979, Commerce issued its finding of dumping with respect to imports of viscose rayon staple fiber from Finland. See Viscose Rayon Staple Fiber From Finland, 44 Fed.Reg. at 17,156. Kemira Oy Sateri, the only known exporter of the fiber from Finland to the United States, was the sole respondent. The petitioner in that investigation is no longer a part of the U.S. fiber industry. Kemira Fibres Oy ("Kemira") is Kemira Oy Sateri's corporate successor.

Commerce conducted administrative reviews of the fiber until 1988. No interested party requested administrative review during the next four consecutive anniversary months in 1989, 1990, 1991, and 1992.

On March 1, 1993, the first day of the Finding's fifth anniversary month, Commerce did not publish a notice of intent to revoke the Order as required by 19 C.F.R. § 353.25(d)(4)(i) (1992). Instead, on March 12, 1993, Commerce published a notice soliciting requests for administrative review for the period March 1, 1992, through February 28, 1993. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation, Opportunity to Request Administrative Review, 58 Fed.Reg. 13,583 (1993). No interested party requested administrative review by the last day of the fifth anniversary month.

On June 3, 1993, Commerce published a notice of intent to revoke the Finding. See Rayon Staple Fiber From Finland; Intent to Revoke Antidumping Finding, 58 Fed. Reg. 31,504 (1993). By letter, dated June 28, 1993, Lenzing Fibers Corporation ("Lenzing") and Courtaulds Fiber Inc. ("Courtaulds"), the only two U.S. domestic producers of rayon staple fiber, objected within the specified time to the proposed revocation. Neither of these parties had responded by the last day of the fifth anniversary month to Commerce's March 12, 1993 solicitation of requests for administrative review. Courtaulds was a U.S. producer in 1979. Lenzing is a new entrant in the U.S. fiber industry.

On March 4, 1994, in the sixth anniversary month of the Finding, Commerce solicited requests for administrative review for the period March 1, 1993, through February 28, 1994. See Anti-dumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 59 Fed.Reg. 10,368 (1994). On March 29, 1994, Lenzing and Courtaulds timely responded, requesting that Commerce conduct an administrative review of Kemira's imports. On March 29, 1994, Commerce published a notice of intent to revoke the Finding and the accompanying Order. See Intent to Revoke Antidumping Duty Orders and Findings, 59 Fed.Reg. 14,608 (1994). On April 11, 1994, Lenzing and Courtaulds objected to the proposed revocation.

On April 21, 1994, for the purpose of conducting administrative review of the fiber for 1993-94, Commerce sent Kemira a questionnaire. The initial response due date of June 6, 1994 was subsequently extended to June 28, 1994 and ultimately extended to July 13, 1994.

On May 12, 1994, Commerce published a notice of 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.

On July 13, 1994, Kemira submitted and subsequently withdrew its questionnaire response and filed a motion for a temporary restraining order ("TRO") and a preliminary injunction to enjoin Commerce from conducting an administrative review of the fiber for 1993-94 pending judgment in its civil action which challenged Commerce's failure to revoke the 1979 Order.

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. On July 19, 1994, a full hearing was held to determine whether a preliminary injunction should issue. On July 26, 1994, the Court granted plaintiff's motion for injunctive relief preliminarily enjoining Commerce from conducting administrative review of the fiber for 1993-94 pending the Court's issuance of a declaratory judgment in plaintiff's civil action.

In Kemira Fibres Oy, 18 CIT at ___, 858 F.Supp. at 234, the Court found that no interested party had objected to Commerce's proposed revocation of the 1979 Order or requested administrative review by March 31, 1993, as required by 19 C.F.R. § 353.25(d)(4)(iii). Further, the Court found that the language in paragraph (iii) of § 353.25(d)(4), is mandatory rather than merely directory. Kemira Fibres Oy, 18 CIT at ___, 858 F.Supp. at 234. Consequently, the Court found that, on April 1, 1993, Commerce was obliged to revoke the outstanding Order. Thus, the Court reasoned that, on June 3, 1993, Commerce had erroneously solicited objections to its proposed revocation of the Finding and, therefore, Commerce could not properly recognize Lenzing's and Courtaulds' June 28, 1993 objection to the revocation. The Court concluded that, consequently, Commerce should not have commenced administrative review for 1993-94. Id. at ___, 858 F.Supp. at 234.

Discussion

Commerce has not responded with information which contradicts or explains the facts on which the Court based its decision in Kemira Fibres Oy, Slip Op. 94-120. Instead, Commerce posits an additional argument, grounded in the notice requirements of 19 C.F.R. § 353.25(d)(4)¹, in support of the position that it has authority and a valid basis for commencing administrative review of the fiber for 1993-94.

The essence of Commerce's argument is that the obligation or right to respond by the last day of the fifth annual anniversary month, to avoid revocation of an antidumping duty order pursuant to paragraph (iii) of 19 C.F.R. § 353.25(d)(4), does not arise unless the notice requirements of paragraphs (i) and (ii) of this regulation have been met. Defendants' Reply to Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Entry of Judgment ("Defendants' Reply") at 4. Commerce points out that, in the case at bar, it "failed to give any notice of intent to revoke the Finding by March 31, 1993." Id. at 2. Commerce deduces that, as it did not give timely notice of its intent to revoke, interested parties were not obligated to object by March 31, 1993 in accordance with paragraph (iii) of § 353.25(d)(4). Commerce claims that interested parties' obligation to object arose on June 3, 1993 when Commerce published a notice of intent to revoke. Commerce further submits that it appropriately refrained from revoking the outstanding order upon receiving a timely objection to this proposed revocation. Id. at 3-5.

Commerce claims that, where it has failed to timely publish a notice of intent to revoke an antidumping duty order or finding, the Court's interpretation of paragraph (iii) of 19 C.F.R. § 353.25(d)(4) in Slip Op. 94-120 nullifies the notice requirements of paragraphs (i) and (ii) of this regulation and abrogates the right to object to revocation which is afforded by paragraph (iii). Defendants' Statement Explaining or Contradicting Facts Contained in the Court's Opinion of July 26, 1994, and Motion for Dissolution of the Preliminary Injunction and Entry of Judgment for the Defendants ("Defendants' Statement") at 4.

Commerce asserts that in Belton Indus., Inc. v. United States, 16 CIT 175, 797 F.Supp. 1000 (1992), aff'd, 6 F.3d 756 (Fed. Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 925, 127 L.Ed.2d 218 (1994) ("Belton"), in the analogous context of a countervailing duty regulation pertaining to revocation of outstanding countervailing duty orders, the Court of Appeals for the Federal Circuit placed such great importance upon the notice requirement contained in the regulation that the court invalidated Commerce's revocation of an order where Commerce had failed to give notice of its intent to revoke. Defendants' Statement at 4-6. Commerce contends that Kemira Fibres Oy, Slip Op. 94-120, conflicts with Belton. Defendants' Statement at 4-5.

Commerce claims that according to the Court's interpretation of § 353.25(d)(4) in Kemira Fibres Oy, Slip Op. 94-120, "it is the domestic industry, not Commerce, that bears the consequences of Commerce's inadvertent tardiness." Defendants' Statement...