Suntec Industries Co., Ltd. v. United States

857 F.3d 1363, 2017 WL 2324231, 38 I.T.R.D. (BNA) 2212, 2017 U.S. App. LEXIS 9338
CourtCourt of Appeals for the Federal Circuit
DecidedMay 30, 2017
Docket2016-2093
StatusPublished
Cited by11 cases

This text of 857 F.3d 1363 (Suntec Industries Co., Ltd. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Suntec Industries Co., Ltd. v. United States, 857 F.3d 1363, 2017 WL 2324231, 38 I.T.R.D. (BNA) 2212, 2017 U.S. App. LEXIS 9338 (Fed. Cir. 2017).

Opinions

Dissenting opinion filed by Circuit Judge NEWMAN.

TARANTO, Circuit Judge.

This case arises from the U.S. Department of Commerce’s third administrative review of its antidumping-duty order covering certain steel nails from China. Mid Continent Nail Corporation, a domestic entity, asked Commerce to initiate the third administrative review to determine the proper duty rates for the covered period, but Mid Continent did not serve the request directly on Suntec Industries, a Chinese exporter and producer named in the antidumping order and in the request. As this case comes to us, it is undisputed that Mid Continent thereby violated a service requirement stated in a Commerce regulation. When Commerce actually initiated the review about a month after receiving the request, it published a notice of the initiation in the Federal Register, as provided in 19 U.S.C. § 1675(a)(1), which states that Commerce shall initiate review “if a request for such a review has been received and after publication of notice of such review in the Federal Register.” Despite the Federal Register publication, however, Suntec did not participate in the review. Evidently because of a lapse in its relationship with the counsel who had been its representative for years in the steel-nail proceedings, Suntec remained unaware of the review until Commerce announced the final results (or a few days earlier).

Based on the service deficiency regarding the request for the review, Suntec sued in the Court of International Trade [1365]*1365to set aside the results of the review at least as applied to Suntee. The court rejected the challenge. It held that Suntee had failed to demonstrate that it was substantially prejudiced by the service error as to the request for the review in this case. In particular, it concluded that the Federal Register notice of initiation of the review constituted notice to Suntee as a matter of law and fully enabled Suntee to participate in the review because Suntee did not show any prejudice from not knowing of the request in the pre-initiation period. We affirm.

I

In 2008, Commerce issued an antidump-ing-duty order, under 19 U.S.C. § 1673, covering certain steel nails from China. Certain Steel Nails from the People’s Republic of China: Final Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances, 73 Fed. Reg. 33,977 (Dep’t of Commerce June 16, 2008). The Final Determination expressly covers Suntee, which was among the few foreign entities for which Commerce specifically verified information (at Suntec’s Shanghai location) pursuant to 19 U.S.C. § 1677m(i). Id. at 33,-977, 33,980, 33,982, 33,983; see J.A. 194. Suntee had established its entitlement to a rate separate from the China-wide rate of 118.04 percent, and Commerce assigned Suntee a rate of 21.24 percent. 73 Fed. Reg. at 33,981, 33,984.

The common annual administrative-review process pursuant to 19 U.S.C. § 1675 then began. In the first two years after issuance of the 2008 order, ie., the years beginning August 1, 2008, and August 1, 2009, respectively, Commerce published Federal Register notices announcing the opportunity to request, Mid Continent requested, and Commerce then initiated (announced by publication in the Federal Register) administrative reviews of the proper duty rate under the order. In each year, the request and initiation included Suntee. In each year, Mid Continent served the request on a Chinese law firm that Suntee had designated as representing it; the certificates of service list that firm’s Shanghai address, not Suntec’s own, different Shanghai address. In each year, Suntee participated in the review by filing a “separate rate certification,” Mid Continent then dropped its review request as to Suntee, and Commerce in turn rescinded the review of Suntee. See J.A. 194-96. The effect was to leave the 21.24 percent rate in place for Suntee. See Certain Steel Nails from the People’s Republic of China: Notice of Partial Rescission of the First Anti-dumping Duty Administrative Review, 75 Fed. Reg. 43,149, 43,150 & nn.1-2 (Dep’t of Commerce July 23, 2010).

This case concerns the third annual administrative review, for the year beginning August 1, 2010. On August 1, 2011, Commerce published a Federal Register notice of the opportunity to request a review, J.A. 196, and on August 31, 2011, Mid Continent requested such a review, naming Sun-tec among many other entities, J.A. 196, 208. The certificate of service shows that, as in the first two administrative reviews, Mid Continent mailed a copy of the request to the Suntec-designated Shanghai lawyers’ address, not to Suntec’s own Shanghai address. J.A. 196. Five weeks later, on October 3, 2011, Commerce published a notice of initiation of the review in the Federal Register. Initiation of Anti-dumping and Countervailing Duty Administrative Reviews and Requests for Revocations in Part, 76 Fed. Reg. 61,076 (Dep’t of Commerce Oct. 3, 2011) (Notice of Initiation). The notice of initiation in the Federal Register expressly lists Suntee as a party subject to the administrative review. Id. at 61,082.

Commerce conducted the review and issued its final determination on March 18, [1366]*13662013. Certain Steel Nails from the People’s Republic of China; Final Results of Third Antidumping Duty Administrative Review; 2010-2011, 78 Fed. Reg. 16,651 (Dep’t of Commerce Mar. 18, 2013). The final determination recites that Suntec, among other entities, did not apply for a rate separate from the China-wide rate and therefore was assigned the China-wide rate of 118.04 percent. Id. at 16,652. As for the reason for Suntec’s non-participation, it is now undisputed that Suntec was in fact unaware of the third administrative review until just after, or perhaps nine days before, the final determination issued. J.A. 73,197, 244.1

Thirty-one days after Commerce published the final results,. Suntec challenged the initiation of the administrative review in the Court of International Trade, arguing that the initiation was invalid as to Suntec because Mid Continent did not serve Suntec with the request for review as required by 19 C.F.R. § 351.303(f)(3)(ii). The court first denied Commerce’s motion to dismiss. The court concluded that it had jurisdiction under 28 U.S.C. § 1581(i) and that Suntec’s complaint allegations, if true, would establish that Mid Continent failed to comply with the service requirements contained in 19 C.F.R. § 351.303(f)(3)(ii). Suntec Indus. Co. v. United States, 951 F.Supp.2d 1341, 1346-48, 1349 (Ct. Int’l Trade 2013).

Subsequently, the court considered and granted Commerce’s motion for summary judgment. The court concluded that Mid Continent did violate the service requirement of 19 C.F.R. § 351.303(f)(3)(ii).

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857 F.3d 1363, 2017 WL 2324231, 38 I.T.R.D. (BNA) 2212, 2017 U.S. App. LEXIS 9338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suntec-industries-co-ltd-v-united-states-cafc-2017.