Win-Tex Products, Inc. v. US, SLIP OP. 94-11. Court No. 92-04-00302 (BN).
| Decision Date | 21 January 1994 |
| Docket Number | SLIP OP. 94-11. Court No. 92-04-00302 (BN). |
| Citation | 843 F. Supp. 709 |
| Parties | WIN-TEX PRODUCTS, INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Adduci, Mastriani, Schaumberg & Schill, Ralph H. Sheppard, Barbara A. Murphy, and Robert J. Leo, New York City, for plaintiff.
Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., Dept. of Justice, Jeffrey M. Telep, Attorney; and J.C. Lowe, Atty. Advisor, Office of Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, for defendant.
INTRODUCTION
Before the court for decision is plaintiff's motion to compel the Department of Commerce ("Commerce") to consider certain evidence on remand of an antidumping duty order scope determination and to restrain Commerce's deficiency questionnaire and reference to a recent antidumping investigation in the Draft Results. Upon full consideration of plaintiff's motion and defendant's opposition, the court concludes that the motion must be denied.
On October 4, 1983, Commerce issued an antidumping duty order, Shop Towels of Cotton From the People's Republic of China; Antidumping Duty Order, 48 Fed.Reg. 25,277 (October 4, 1983) ("Order"). On March 12, 1991, plaintiff initiated a scope clarification request at Commerce and sought a ruling excluding its shop towels, made of osnaburg fabric from the People's Republic of China ("PRC") but allegedly assembled and completed in Honduras, from the scope of the Order. After conducting a "scope proceeding," on March 31, 1992 Commerce issued its Final Scope Ruling on the Request By Win-Tex Products, Inc. for Clarification of the Scope of the Antidumping Duty Order on Shop Towels of Cotton From the People's Republic of China ("1992 Final Scope Ruling"). Commerce determined that plaintiff's shop towels fall within the scope of the Order. Such Order constitutes the final agency determination contested by plaintiff in this action.
In its 1992 Final Scope Ruling, Commerce determined that § 353.29(f) of the regulations, providing criteria for determining whether a product is assembled or completed in a third country and whether it should be included within the scope of the order, was not applicable. Finding that the product descriptions of the merchandise in the underlying antidumping duty investigation were dispositive in this case, Commerce determined that in accordance with § 353.29(i)(1) plaintiff's shop towels are within the scope of the Order.
In this action, commenced pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a(a)(2)(A), plaintiff challenges Commerce's 1992 Final Scope Ruling, which is judicially reviewed on the administrative record in conformance with 19 U.S.C. § 1516a(b)(2)(A). At a previous stage of this litigation, plaintiff sought, unsuccessfully, to supplement the 1992 Final Scope Ruling administrative record with, inter alia, a 1984 scope ruling under the same Order. The 1984 ruling, reciting household use and retail channels of trade for Win-Tex' "Wipe-Eze Utility Towels," excluded such towels from the scope of the Order. In 797 F.Supp. 1025 (1992), the court denied plaintiff's motion to supplement the administrative record with the 1984 ruling.
Plaintiff thereafter filed a motion for judgment upon the administrative record, appended a copy of the 1984 scope ruling plaintiff had unsuccessfully sought to include in the 1992 Final Scope Ruling record, discussed it, and requested that the court take judicial notice of the 1984 ruling. Plaintiff further urged in its motion that the 1984 scope ruling was a binding administrative precedent "for the limited purpose of contradicting the current assertion of the Defendant that end use and retail sale of plaintiff's shop towels are irrelevant criteria for determining the scope of the Order."
In 829 F.Supp. 1349 (1993), the court denied defendant's motion to strike the 1984 ruling appended to plaintiff's motion for judgment on the administrative record. The court ruled that while it could take judicial notice of an unpublished administrative ruling or decision, like the 1984 letter ruling, the latter had no binding precedential effect in the current scope proceedings. The court explained:
The 1984 letter ruling's precedential value for making a Diversified Products Corp. v. United States, 572 F.Supp. 883 (1983) analysis under the Order, including end use and channels of trade, is seriously denigrated on its face by ITA's express declination to address any Diversified Products criteria and ITA's exclusion of the utility towels from the scope of the Order based simply on the agency's vague conclusory rationale that "these materials are not of the type included in the original petition, fair value investigation, or the ITC's injury investigation of Chinese cotton shop towel imports." The 1984 letter ruling, involving differently described goods than those currently before the court, contains no definitive articulation of principle with reference to the relevance of use or channels of trade criteria under the Order. Clearly, in view of the vague parameters of the 1984 ruling for a Diversified Products analysis, the prior ruling has no precedential value under the Order for anything other than the same merchandise and facts that were before the ITA in the 1984 scope inquiry.
829 F.Supp. at 1353 (emphasis added).
Additionally, on August 5, 1993 and concurrently with the decision in 829 F.Supp. 1349, the court in 829 F.Supp. 1343, held: (1) that in its 1992 Final Scope Ruling, Commerce was correct in not applying § 353.29(f) with respect to those shop towels that enter Honduras as pre-cut and pre-hemmed from PRC; (2) that Commerce improperly failed to consider § 353.29(f) and the "Able Textile" rationale relative to plaintiff's cut but unhemmed (unfinished) pieces of fabric and/or the uncut and unhemmed continuous length fabric imported into Honduras; (3) and that with respect to all of plaintiff's towels, Commerce improperly determined that the descriptions of the merchandise from the original antidumping investigation were "dispositive" within the purview of § 353.29(i)(1). Thus, the 1992 Final Scope Ruling was remanded to Commerce for reconsideration of all the facts of record in light of the criteria listed in § 353.29(f) () or in § 353.29(i)(2) ("Diversified Products" criteria), as appropriate. Id. The remand proceedings are currently pending and the court is advised that Commerce has issued "Draft Final Results."
In 829 F.Supp. 1349, the court stressed that since the 1984 letter ruling has no precedential value under the Order in the current scope proceedings, such ruling "does not enter into the decision concurrent 829 F.Supp. 1343 remanding the action." 829 F.Supp. at 1353.
Despite the court's decisions adverse to plaintiff's contentions concerning the 1984 scope ruling, plaintiff now seeks an order compelling Commerce to fully consider in its remand proceedings the 1984 ruling as well as to incorporate the complete underlying record of the ruling into the administrative record of the remand proceedings. Plaintiff further requests that the court restrain Commerce from proceeding with a deficiency questionnaire and from making any reference in its Draft Results to its recent ruling in an antidumping shop towel investigation.
Defendant opposes plaintiff's motion on the ground that the court may review only final agency action and hence plaintiff's motion made prior to completion of the remand proceedings is premature; and also on the ground that the motion to compel consideration of evidence seeks in effect extraordinary relief in the nature of a writ of mandamus, which must be denied since plaintiff has an appropriate, adequate, and meaningful remedy by...
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