Slip Op. 12-38
UNITED STATES COURT OF INTERNATIONAL TRADE
HEVEAFIL SDN. BHD., FILMAX SDN. BHD AND HEVEAFIL USA INC.,
Plaintiffs, Before Richard W. Goldberg, Senior Judge v. Court No. 04-00477
UNITED STATES,
Defendant.
OPINION & ORDER
[Plaintiff’s Motion for Judgment on the Agency Record is granted and the final results of the changed circumstances review are remanded.]
Dated: March 21, 2012
Walter J. Spak and Jay C. Campbell, White & Case LLP, for the Plaintiff.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. McCarthy, Assistant Director; and Stephen C. Tosini, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, for the Defendant.
Goldberg, Senior Judge: Plaintiffs Heveafil Sdn. Bhd., Filmax Sdn. Bhd., and Heveafil
USA Inc. (collectively “Heveafil”) contest the U.S. Department of Commerce’s (“Commerce”)
final results in the changed circumstances review of the antidumping duty order on extruded
rubber thread from Malaysia. Extruded Rubber Thread from Malaysia: Final Results of
Changed Circumstances Review of the Antidumping Duty Order and Intent To Revoke Court No. 04-00477 Page 2
Antidumping Duty Order, 69 Fed. Reg. 51,989 (Dep’t Commerce Aug. 24, 2004) (“Final
Results”).
Background
In 1992, Commerce published an antidumping duty order for extruded rubber thread from
Malaysia. Extruded Rubber Thread from Malaysia: Antidumping Duty Order and Amendment of
Final Determination of Sales at Less Than Fair Value, 57 Fed. Reg. 46,150 (Dep’t Commerce
Oct. 7, 1992). Heveafil was subject to the order.
Commerce conducted an administrative review of the order for the period October 1,
1995 through September 30, 1996. Extruded Rubber Thread from Malaysia: Final Results of
Antidumping Duty Administrative Review, 63 Fed. Reg. 12,752 (Dep’t Commerce Mar. 16,
1998). Heveafil challenged the results of the 1995–1996 review. As a result, Commerce
suspended liquidation of the entries covered by that review.1
In 2004, Heveafil requested a changed circumstances review. Heveafil contended that
the sole United States manufacturer of domestic like product, North American Rubber Thread
Co., Inc. (“NART”), had declared bankruptcy and ceased operations, warranting revocation of
the order. Commerce initiated the requested changed circumstances review.
In the final results of the changed circumstances review, Commerce revoked the order
effective October 1, 2003, the date of the last completed administrative review. At that time, the
1 Liquidation of the 1995–1996 entries remains enjoined pursuant to 19 U.S.C. § 1516a(c)(2) in Heveafil Sdn. Bhd. v. United States, Ct. No. 98-04-00908, which is stayed pending the outcome of this appeal of the final results of the changed circumstances review. Court No. 04-00477 Page 3
trustee in bankruptcy for NART supported Commerce’s revocation date of October 1, 2003.
Commerce selected the 2003 date despite Heveafil’s assertion that the order should be revoked
retroactively to October 1, 1995. Heveafil argued for an October 1, 1995 revocation date so as to
include any unliquidated entries covered by the order. Commerce asserted that its practice is to
revoke antidumping duty orders so that the effective date of revocation covers unliquidated
entries that have not been subject to a completed administrative review.
In 2005, NART and Heveafil reached a settlement agreement. Subsequently, NART
requested a second changed circumstances review of the order, expressing its support for an
October 1, 1995 revocation date. Commerce refused to initiate NART’s request for a second
changed circumstances review. NART appealed Commerce’s refusal. The Federal Circuit
determined that NART was judicially estopped from arguing in favor of a revocation date of
October 1, 1995. See Trustees in Bankr. of N. Am. Rubber Thread Co. v. United States, 593 F.3d
1346, 1353 (Fed. Cir. 2010). The Federal Circuit explained that NART previously argued
against that date and that NART did not provide an adequate reason for its change in position
that would justify Commerce changing the effective revocation date of the order. Id. The
Federal Circuit noted that there was still an opportunity for this Court to review the revocation
date. Id. at 1356. Specifically, the revocation date could be reviewed if Heveafil challenged
Commerce’s decision in the first changed circumstances review. Id.
Now, Heveafil has brought this appeal to challenge the revocation date Commerce
selected in the first changed circumstances review. Court No. 04-00477 Page 4
Jurisdiction and Standard of Review
This Court has jurisdiction pursuant to section 201 of the Customs Court Act of 1980, 28
U.S.C. § 1581(c) (2006).
This Court must “uphold Commerce’s determination unless it is ‘unsupported by
substantial evidence on the record, or otherwise not in accordance with law.’” Micron Tech., Inc.
v. United States, 117 F.3d 1386, 1393 (Fed. Cir. 1997) (quoting 19 U.S.C. § 1516a(b)(1)(B)(i)
(1994)). When reviewing agency determinations, findings, or conclusions for substantial
evidence, this Court determines whether the agency action is reasonable in light of the entire
record. See Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350–51 (Fed. Cir. 2006).
Discussion
Heveafil challenges the revocation date Commerce selected for the antidumping duty
order for extruded rubber thread from Malaysia. Heveafil urges this Court to remand the matter
for reconsideration of the revocation date.
The antidumping law authorizes Commerce to revoke an antidumping order based on
changed circumstances. See Tariff Act of 1930, § 753, 19 U.S.C. § 1675(b), (d) (2000).2
Commerce conducts a changed circumstances review when it receives a request by an interested
party that “shows changed circumstances sufficient to warrant a review” of an antidumping
order. 19 U.S.C. § 1675(b)(1). Commerce’s regulations further elaborate that Commerce may
revoke an order if “[p]roducers accounting for substantially all of the production of the domestic
2 Further citations to the Tariff Act of 1930 are to the relevant portions of Title 19 of the U.S. Code, 2006 edition. Court No. 04-00477 Page 5
like product to which the order (or the part of the order to be revoked) . . . pertains have
expressed a lack of interest in the order, in whole or in part . . . .” 19 C.F.R. § 351.222(g)
(2006); see also Or. Steel Mills Inc. v. United States, 862 F.2d 1541, 1545 (Fed. Cir. 1988)
(holding that lack of industry support alone is a ground for revocation).
Commerce claims that 19 U.S.C. § 1675 “does not envision the inclusion of entries
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Slip Op. 12-38
UNITED STATES COURT OF INTERNATIONAL TRADE
HEVEAFIL SDN. BHD., FILMAX SDN. BHD AND HEVEAFIL USA INC.,
Plaintiffs, Before Richard W. Goldberg, Senior Judge v. Court No. 04-00477
UNITED STATES,
Defendant.
OPINION & ORDER
[Plaintiff’s Motion for Judgment on the Agency Record is granted and the final results of the changed circumstances review are remanded.]
Dated: March 21, 2012
Walter J. Spak and Jay C. Campbell, White & Case LLP, for the Plaintiff.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. McCarthy, Assistant Director; and Stephen C. Tosini, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, for the Defendant.
Goldberg, Senior Judge: Plaintiffs Heveafil Sdn. Bhd., Filmax Sdn. Bhd., and Heveafil
USA Inc. (collectively “Heveafil”) contest the U.S. Department of Commerce’s (“Commerce”)
final results in the changed circumstances review of the antidumping duty order on extruded
rubber thread from Malaysia. Extruded Rubber Thread from Malaysia: Final Results of
Changed Circumstances Review of the Antidumping Duty Order and Intent To Revoke Court No. 04-00477 Page 2
Antidumping Duty Order, 69 Fed. Reg. 51,989 (Dep’t Commerce Aug. 24, 2004) (“Final
Results”).
Background
In 1992, Commerce published an antidumping duty order for extruded rubber thread from
Malaysia. Extruded Rubber Thread from Malaysia: Antidumping Duty Order and Amendment of
Final Determination of Sales at Less Than Fair Value, 57 Fed. Reg. 46,150 (Dep’t Commerce
Oct. 7, 1992). Heveafil was subject to the order.
Commerce conducted an administrative review of the order for the period October 1,
1995 through September 30, 1996. Extruded Rubber Thread from Malaysia: Final Results of
Antidumping Duty Administrative Review, 63 Fed. Reg. 12,752 (Dep’t Commerce Mar. 16,
1998). Heveafil challenged the results of the 1995–1996 review. As a result, Commerce
suspended liquidation of the entries covered by that review.1
In 2004, Heveafil requested a changed circumstances review. Heveafil contended that
the sole United States manufacturer of domestic like product, North American Rubber Thread
Co., Inc. (“NART”), had declared bankruptcy and ceased operations, warranting revocation of
the order. Commerce initiated the requested changed circumstances review.
In the final results of the changed circumstances review, Commerce revoked the order
effective October 1, 2003, the date of the last completed administrative review. At that time, the
1 Liquidation of the 1995–1996 entries remains enjoined pursuant to 19 U.S.C. § 1516a(c)(2) in Heveafil Sdn. Bhd. v. United States, Ct. No. 98-04-00908, which is stayed pending the outcome of this appeal of the final results of the changed circumstances review. Court No. 04-00477 Page 3
trustee in bankruptcy for NART supported Commerce’s revocation date of October 1, 2003.
Commerce selected the 2003 date despite Heveafil’s assertion that the order should be revoked
retroactively to October 1, 1995. Heveafil argued for an October 1, 1995 revocation date so as to
include any unliquidated entries covered by the order. Commerce asserted that its practice is to
revoke antidumping duty orders so that the effective date of revocation covers unliquidated
entries that have not been subject to a completed administrative review.
In 2005, NART and Heveafil reached a settlement agreement. Subsequently, NART
requested a second changed circumstances review of the order, expressing its support for an
October 1, 1995 revocation date. Commerce refused to initiate NART’s request for a second
changed circumstances review. NART appealed Commerce’s refusal. The Federal Circuit
determined that NART was judicially estopped from arguing in favor of a revocation date of
October 1, 1995. See Trustees in Bankr. of N. Am. Rubber Thread Co. v. United States, 593 F.3d
1346, 1353 (Fed. Cir. 2010). The Federal Circuit explained that NART previously argued
against that date and that NART did not provide an adequate reason for its change in position
that would justify Commerce changing the effective revocation date of the order. Id. The
Federal Circuit noted that there was still an opportunity for this Court to review the revocation
date. Id. at 1356. Specifically, the revocation date could be reviewed if Heveafil challenged
Commerce’s decision in the first changed circumstances review. Id.
Now, Heveafil has brought this appeal to challenge the revocation date Commerce
selected in the first changed circumstances review. Court No. 04-00477 Page 4
Jurisdiction and Standard of Review
This Court has jurisdiction pursuant to section 201 of the Customs Court Act of 1980, 28
U.S.C. § 1581(c) (2006).
This Court must “uphold Commerce’s determination unless it is ‘unsupported by
substantial evidence on the record, or otherwise not in accordance with law.’” Micron Tech., Inc.
v. United States, 117 F.3d 1386, 1393 (Fed. Cir. 1997) (quoting 19 U.S.C. § 1516a(b)(1)(B)(i)
(1994)). When reviewing agency determinations, findings, or conclusions for substantial
evidence, this Court determines whether the agency action is reasonable in light of the entire
record. See Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350–51 (Fed. Cir. 2006).
Discussion
Heveafil challenges the revocation date Commerce selected for the antidumping duty
order for extruded rubber thread from Malaysia. Heveafil urges this Court to remand the matter
for reconsideration of the revocation date.
The antidumping law authorizes Commerce to revoke an antidumping order based on
changed circumstances. See Tariff Act of 1930, § 753, 19 U.S.C. § 1675(b), (d) (2000).2
Commerce conducts a changed circumstances review when it receives a request by an interested
party that “shows changed circumstances sufficient to warrant a review” of an antidumping
order. 19 U.S.C. § 1675(b)(1). Commerce’s regulations further elaborate that Commerce may
revoke an order if “[p]roducers accounting for substantially all of the production of the domestic
2 Further citations to the Tariff Act of 1930 are to the relevant portions of Title 19 of the U.S. Code, 2006 edition. Court No. 04-00477 Page 5
like product to which the order (or the part of the order to be revoked) . . . pertains have
expressed a lack of interest in the order, in whole or in part . . . .” 19 C.F.R. § 351.222(g)
(2006); see also Or. Steel Mills Inc. v. United States, 862 F.2d 1541, 1545 (Fed. Cir. 1988)
(holding that lack of industry support alone is a ground for revocation).
Commerce claims that 19 U.S.C. § 1675 “does not envision the inclusion of entries
subject to completed administrative reviews within the scope of a changed circumstances review
because such entries must be liquidated in accordance with Commerce’s final results or [a] final
court decision in [an] appropriate challenge . . . ” Def. Br. at 11. Commerce previously claimed
that 19 U.S.C. § 1675(a) precludes the inclusion of unliquidated entries subject to a completed
administrative review within the scope of a changed circumstances review. See Trustees in
Bankr. of N. Am. Rubber Thread Co. v. United States, 31 CIT 2040, 2043, 533 F. Supp. 2d 1290,
1294 (2007). Commerce insists that the antidumping rate determined in the final results of the
1995–1996 review must be assessed on the unliquidated entries from that review period.
However, as this Court previously noted, Commerce fails to account for § 1675(d)(3) in
its analysis. See id. That portion of the statute provides that “[a] determination . . . to revoke an
order . . . shall apply with respect to unliquidated entries of the subject merchandise which are
entered, or withdrawn from warehouse, for consumption on or after the date determined by the
administering authority.” 19 U.S.C. § 1675(d)(3). This section clearly states that revocation
shall apply to unliquidated entries. However, this section does not state that revocation shall not
apply to unliquidated entries that were already subject to completed administrative reviews. Court No. 04-00477 Page 6
Rather, it gives the agency discretion to select the effective revocation date. Most notably, the
statute does not limit Commerce’s discretion to select a revocation date that predates a completed
administrative review.
This Court previously rejected, and again rejects as unreasonable, Commerce’s
arguments that the principle of administrative finality prevails over any discretion the agency has
in selecting an effective date of revocation or that the completion of an administrative review
precludes the agency from retroactively revoking an order. Heveafil requested the changed
circumstances review for Commerce to revoke the antidumping order because the domestic
industry no longer existed. Commerce’s assertion that the antidumping rate determined in the
1995–1996 review must be assessed on the unliquidated entries covered in that review
contravenes the remedial purpose of the statute given the absence of a domestic industry.
Therefore, Commerce’s determination is unreasonable, not supported by substantial evidence,
and not in accordance with law.
Conclusion and Order
For the foregoing reasons, this matter is remanded for reconsideration of the revocation
date, and such proceedings shall be consistent with the opinions of this Court and the Federal
Circuit.
Upon consideration of all proceedings and submissions herein, and upon due
deliberation, it is hereby
ORDERED that plaintiff’s motion for judgment on the agency record challenging the final results in the changed circumstances review of the antidumping duty order on extruded Court No. 04-00477 Page 7
rubber thread from Malaysia, Extruded Rubber Thread from Malaysia: Final Results of Changed Circumstances Review of the Antidumping Duty Order and Intent To Revoke Antidumping Duty Order, 69 Fed. Reg. 51,989 (Dep’t Commerce Aug. 24, 2004) (“Final Results”) be, and hereby is, GRANTED; it is further
ORDERED that the Final Determination be, and hereby is, remanded to the U.S. Department of Commerce for redetermination in accordance with this Opinion & Order; it is further
ORDERED that, on remand, Commerce shall issue a Remand redetermination that is supported by substantial evidence on the record, and is in all respects in accordance with law; and it is further
ORDERED that Commerce shall file the Remand redetermination with the court by August 21, 2012, that plaintiff shall file any comments thereon within thirty (30) days of the date on which the Remand Redetermination is filed, and that defendant shall file any response to plaintiff’s comments within twenty (20) days of the date on which plaintiff files comments.
/s/ Richard W. Goldberg Richard W. Goldberg Senior Judge
Dated: March 21, 2012 New York, New York