Oy v. U.S.

• Decision Date: 02 August 1995
• Docket Number: No. 95-1077,95-1077
• Parties: Kemira Fibres OY, Plaintiff-Appellee, v. The UNITED STATES, Ronald H. Brown, Secretary of Commerce, and Department of Commerce, Defendants-Appellants.
• Court: U.S. Court of Appeals — Federal Circuit

Page 866

61 F.3d 866

17 ITRD 1545

Kemira Fibres OY, Plaintiff-Appellee, v. The UNITED STATES, Ronald H. Brown, Secretary of Commerce and Department of Commerce, Defendants-Appellants.

No. 95-1077.

United States Court of Appeals, Federal Circuit.

Aug. 2, 1995.

James H. Hulme, Arent, Fox, Kintner, Plotkin & Kahn, Washington, DC, argued for plaintiff-appellee. Stephen L. Gibson and Christine L. Herrell, Arent, Fox, Kintner, Plotkin & Kahn, Washington, DC, were on the brief for plaintiff-appellee.

Velta A. Melnbrencis, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued for defendants-appellants. With her on the brief were Frank W. Hunger, Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief were Stephen J. Powell, Chief Counsel for Import Before NEWMAN, LOURIE, and SCHALL, Circuit Judges.

Admin., Berniece A. Browne, Sr. Counsel and Lucius B. Lau, Atty.-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, of counsel.

LOURIE, Circuit Judge.

The United States, the Secretary of Commerce, and the Department of Commerce (collectively "Commerce") appeal from a decision of the Court of International Trade entering judgment in favor of Kemira Fibres Oy, an importer of viscose rayon staple fiber to the United States from Finland. Kemira Fibres Oy v. United States, 861 F.Supp. 144 (Ct.Int'l Trade 1994). The court held that, pursuant to 19 C.F.R. Sec. 353.25(d)(4) (1993), Commerce was not authorized to commence an administrative review with respect to Kemira's fiber importation for the period March 1, 1993 through February 28, 1994. Id. at 149. The court accordingly ordered Commerce to revoke an antidumping finding issued with respect to Kemira's imports, terminate Commerce's administrative review of the imports for 1993-94, and end Commerce's suspension of liquidation of entries of the imports. Id. Because Commerce's failure to timely comply with the notice requirement of 19 C.F.R. Sec. 353.25(d)(4) did not deprive Commerce of the authority to commence an administrative review, we reverse and remand.

BACKGROUND

On March 21, 1979, pursuant to the Antidumping Act of 1921, the United States Treasury Department ¹ published a dumping finding ² with respect to imports of viscose rayon staple fiber from Finland. See Viscose Rayon Staple Fiber From Finland, 44 Fed.Reg. 17,156 (1979) (the "fiber finding"). Kemira Oy Sateri, the only known importer of the fiber from Finland, responded. Appellee Kemira is the corporate successor to Kemira Oy Sateri. Pursuant to 19 U.S.C. Sec. 1675(a), Commerce conducted periodic administrative reviews of the fiber finding from 1980 through 1984. See Viscose Rayon Staple Fiber From Finland, 46 Fed.Reg. 19,844 (1981); 46 Fed.Reg. 49,937 (1981); 48 Fed.Reg. 47,042 (1983); 49 Fed.Reg. 29,439 (1984).

In 1984, Congress amended the antidumping law to provide that administrative reviews are to be conducted upon request only. See 19 U.S.C. Sec. 1675(a) (1988). Commerce promulgated regulations requiring that interested parties request an administrative review during the annual anniversary month of each existing finding or order. See Antidumping and Countervailing Duties; Administrative Reviews on Request; Transition Provisions, 50 Fed.Reg. 32,556 (1985). Commerce annually publishes a notice of opportunity for interested parties to request such an administrative review.

Commerce received such requests and therefore conducted administrative reviews of the fiber finding for the two periods encompassing March 1, 1986 through February 28, 1988. See Viscose Rayon Staple Fiber From Finland, 53 Fed.Reg. 42,992 (1988). In the 1987-88 annual administrative review, Commerce determined that the dumping margin was zero. Id.

In 1989, Commerce promulgated "sunset" regulations, which provided for the revocation of orders or termination of suspended investigations "based on changed circumstances":

(d) Revocation or termination based on changed circumstances.

(1) The Secretary may revoke an order or terminate a suspended investigation if the Secretary concludes that: (i) The order * * * * * *

or suspended investigation no longer is of interest to interested parties, ...;

(4)(i) If for four consecutive annual anniversary months no interested party has requested an administrative review, under Sec. 353.22(a), of an order or suspended investigation, not later than the first day of the fifth consecutive annual anniversary month, the Secretary will publish in the FEDERAL REGISTER notice of "Intent to Revoke Order" or, if appropriate, "Intent to Terminate Suspended Investigation."

(ii) Not later than the date of publication of the notice described in paragraph (d)(4)(i) of this section, the Secretary will serve written notice of the intent to revoke or terminate on each interested party listed on the Department's service list and on any other person which the Secretary has reason to believe is a producer or seller in the United States of the like product.

(iii) If by the last day of the fifth annual anniversary month no interested party objects, or requests an administrative review under Sec. 353.22(a), the Secretary at that time will conclude that the requirements of paragraph (d)(1)(i) for revocation or termination are met, revoke the order or terminate the suspended investigation, and publish in the FEDERAL REGISTER the notice described in paragraph (d)(3)(vii) of this section.

19 C.F.R. Sec. 353.25(d) (1993).

No interested party requested administrative review of the fiber finding during the next four consecutive anniversary months (March 1989, March 1990, March 1991, and March 1992). Consequently, Commerce conducted no reviews of that finding from March, 1988 through February, 1992. On March 1, 1993, the first day of the finding's fifth anniversary month, Commerce failed to publish a notice of intent to revoke the fiber finding in accordance with 19 C.F.R. Sec. 353.25(d)(4). 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, 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 fiber finding, see Rayon Staple Fiber From Finland, 58 Fed.Reg. 31,504 (1993), stating that "if no domestic interested party objects to this intent to revoke within thirty days from June 3, 1993, we shall conclude that the finding is no longer of interest to interested parties and shall proceed with revocation." 58 Fed.Reg. at 31,505. By letter dated June 28, 1993, the only two U.S. domestic producers of rayon staple fiber ³ objected to the proposed revocation. Accordingly, Commerce did not revoke the fiber finding.

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 Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation, 59 Fed.Reg. 10,368 (1994). On March 29, 1994, the two domestic producers responded, requesting that Commerce conduct an administrative review of the fiber finding.

On March 29, 1994, Commerce published a notice of intent to revoke the fiber finding. See Intent to Revoke Antidumping Duty Orders and Findings, 59 Fed.Reg. 14,608 (1994). On April 11, 1994, the domestic producers objected to the proposed revocation. In May 1994, Commerce then initiated an administrative review of the fiber for the period March 1, 1993 through February 28, 1994. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 59 Fed.Reg. 24,683 (1994).

By letter dated June 23, 1994, Kemira requested Commerce to revoke the fiber finding, contending that Commerce should have revoked the finding as of April 1, 1993, because no administrative review had been requested during the fifth anniversary The Federal Register notice dated June 3, 1993 (58 FR 31504) stated that interested parties, "must submit their comments in writing no later than thirty days from June 3, 1993." It is the Department's practice to grant the thirty-day objection opportunity when the publication of the notice is later than that contemplated by the regulation[,] 19 CFR 353.25(d)(4)(i). The petitioner met the Department's due date for submission of its objection to revocation by filing its objection on June 28, 1993.

                month, which was March 1993.  Kemira also argued that the domestic producers' June 28, 1993 objection to revocation should not have been accepted or given any effect by Commerce because it was not properly served on Kemira, as required by 19 C.F.R. Sec. 353.31(g). 4  By letter dated July 12, 1994, Commerce's Director, Office of Antidumping Compliance, responded
                

Furthermore, it appears that petitioner made a good-faith effort to meet all filing requirements when it submitted its objection to the sunset revocation. The appropriate copies were filed with the Department on June 28, 1993, and were available in the official and public files for this case.

After considering all information presented by both petitioner and respondent, the Department believes that the antidumping finding should stay in place. Therefore, the Department will proceed with the current administrative review.

Kemira then brought suit in the Court of International Trade, seeking interim and final relief. On July 26, 1994, the court granted Kemira's motion for preliminary injunction. Kemira Fibres Oy v. United States, 858 F.Supp. 229 (Ct.Int'l Trade 1994). The court concluded that because no interested party had objected to Commerce's proposed revocation of the fiber finding or requested administrative review by the fifth anniversary month, March 1993, as required by 19 C.F.R. Sec. 353.25(d)(4)(iii), Commerce was obliged...