CAFC Finds Un-Notified Chinese Exporter Can't Claim AD Review, High Rate Were Invalid
A Commerce Department antidumping duty review of a Chinese exporter of steel nails was valid, even though notification requirements were not met and the Chinese exporter did not defend itself in the review, the U.S. Court of Appeals for the Federal Circuit said on May 30 (here). Affirming a Court of International Trade ruling issued in April 2016 (see 1604250033), the appeals court found Suntec was effectively notified of the administrative review when the initiation notice was published in the Federal Register, even though the domestic manufacturer that requested the review did not serve the request directly on Suntec, as required by regulation.
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Because of its non-participation in the review, including its failure to submit a certification that it merited its own “separate rate,” Suntec was assigned the 118.04% China-wide rate in the review. Suntec argued Mid Content, the domestic manufacturer that filed the request for review, violated Commerce’s regulations by not meeting the service requirement. Like the lower court, the appeals court found Suntec was not actually harmed by the omission. Federal Register notices are legal notifications, so Suntec should have known it was under review once the initiation notice was published. Suntec could only claim harm in that it did not have as much pre-initiation time to prepare for the review. But Commerce allowed 60 days after the initiation before the first submissions were due, making any harm difficult to prove.
Circuit Judge Pauline Newman dissented from the two-judge majority, arguing Commerce skipped its regulatory requirements when it initiated the review on Suntec. “Given Commerce’s regulations, Suntec’s duty to inquire did not begin until it received the required actual notice of the request,” she said. “The Federal Register Act does not, by itself, compel foreign entities to monitor the Federal Register. Nor does the Tariff Act. The regulations require actual notice.” Newman disagreed with the notion that Suntec was not harmed. The regulatory violation was not harmless, and Suntec was substantially prejudiced, for it did not have the opportunity to participate at all,” she said. “Foreign manufacturers are entitled to rely on the regulations that Commerce has promulgated.”
(Suntec Industries Co., Ltd. v. U.S., CAFC No. 2016-2093, dated 05/30/17, Judges Taranto and Chen; Newman dissenting)