|Secretariat File No.
May 6, 1996
|In the matter of:
TUBES FROM CANADA
Howard N. Fenton, III (Chairperson)
Donald J.M. Brown
W. Roy Hines
DECISION OF THE PANEL
For Mitsubishi Electronics Industries, Inc.: Baker & McKenzie
(Kevin O'Brien and Sandra E. Chavez).
For the U.S. Department of Commerce: Office of Chief Counsel for
Import Administration (Stephen J. Powell, Edward S. Reisman and Lucius B. Lau).
For the International Brotherhood of Electrical Workers, Industrial Union
Department, AFL-CIO; International Union of Electronic, Electrical Salaries, Machine and
Furniture Workers, AFL-CIO; International Association of Machinists and Aerospace Workers,
United Steel Workers of America: Collier, Shannon, Rill & Scott, PLLC (Paul
D. Cullen, Lawrence J. Lasoff, Mary T. Staley and Lynn E. Duffy).
TABLE OF CONTENTS
III. STANDARD OF REVIEW
V. CONCURRING OPINION OF PANELIST W. ROY HINES
This Binational Panel ("Panel") was constituted
pursuant to Article 1904 of the North American Free Trade Agreement to review the decision
by the United States Department of Commerce, International Trade Administration
("Commerce") not to revoke the antidumping duty order respecting Color Picture
Tubes from Canada. 1 Supporting Commerce's decision as interested parties are the
International Association of Machinists and Aerospace Workers, the International
Brotherhood of Electrical Workers, the International Union of Electronic, Electrical,
Salaried, Machine and Furniture Workers, the Industrial Union Department, AFL-CIO, and the
United Steelworkers of America ("Unions"). Commerce's decision was challenged by
Mitsubishi Electronics Industries Canada, Inc. ("Mitsubishi").
Mitsubishi challenged Commerce's decision on the grounds
that Commerce had failed to comply with their own regulations and requested that the
antidumping duty order on Color Picture Tubes from Canada be revoked. 2
For the reasons
more fully set forth in this Opinion, the Panel affirms the decision of the Department of
Commerce not to revoke the antidumping duty order.
On January 7, 1988 Commerce issued an "Antidumping Duty
Order and Amendment to Final Determination of Sales at Less Than Fair Value; Color Picture
Tubes From Canada". 3 During the five consecutive annual anniversary months following
publication of the order, Commerce offered interested parties the opportunity to request
an administrative review of the order, pursuant to 19 C.F.R. 353.22(a). 4 No review was
requested. Commerce again offered interested parties the opportunity to request an
administrative review in January, 1994. 5
A review was requested by the Unions and later withdrawn.
19 C.F.R. 353.25(d)(4) provides the procedure for Commerce
to follow when no interested party seeks an administrative review:
(i) If for four consecutive annual
anniversary months no interested party has requested an administrative review . . . of an
order . . . , not later than on the first day of the fifth consecutive anniversary month,
the Secretary will publish in the Federal Register notice of "Intent to Revoke
(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
. . . , the Secretary at that time will conclude that the requirements of paragraph
(d)(1)(i) for revocation ... . are met, revoke the order . . . , and publish in the
Federal Register [a] notice [of revocation].
Pursuant to 19 C.F.R. 353.25(d)(4)(i) Commerce was required
to publish a notice of "Intent to Revoke Order" no later than January 1, 1993,
since no interested party had requested an administrative review during the first four
consecutive annual anniversary months following publication of the antidumping duty order.
However, no notice was published until December 28, 1994, almost two years after the date
on which the regulations required that notice be given. 7
Once the notice of intent to revoke was published by
Commerce, the Unions objected to revocation of the order. Due to the objection, on May 25,
1995 Commerce published a Notice of Determination Not to Revoke the Antidumping Duty Order
on Color Picture Tubes from Canada.8
Mitsubishi requests that the antidumping duty order be
revoked pursuant to 19 C.F.R. 353.25(d)(4)(iii). Because no interested party objected by
the last day of the fifth annual anniversary month of the publication of the order,
Mitsubishi argues, the order should have been revoked, regardless of the fact that a
notice of "Intent to Revoke Order" was not published as required by 19 C.F.R.
353.25(d)(4)(i). Commerce and the Unions, on the other hand, object to revocation of the
order and argue that notice of intent to revoke must be given to interested parties so
that they may have an opportunity to object, before revocation can occur. Thus, even
though Commerce's publication of a notice of intent to revoke was untimely, there was
ultimately an objection and the order therefore cannot be revoked.
III. STANDARD OF REVIEW
Pursuant to Articles 1904(2)-(3) of the North American Free
Trade Agreement the Panel is to apply the standard of review provided in section
516A(b)(1)(B) of the Tariff Act of 1930, as amended. 9 The standard of review requires that
any determination unsupported by substantial evidence on the record, or otherwise not in
accordance with law, be held unlawful by the Panel. 10 Also to be noted is that decisions of
the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit are binding
on this Panel.11
"Substantial evidence" has been defined by the
Court of Appeals for the Federal Circuit as "more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion". The Panel may not substitute its own judgment for that of
12 the agency's when
there are two legitimate alternative views.13
Additionally, the standard of review requires that the
agency determination be in accordance with law. The Panel must defer to an agency's
reasonable interpretation of the statute it has been charged with administering.14
The issue before this panel is virtually identical to that
considered by the United States Court of Appeals for the Federal Circuit in Kemira
Fibres Oy v. United States 15 (Kemira). In that case, as here, the Department of Commerce
neglected to publish notice of its "intent to revoke" an antidumping order after
the time required for such notice under the department's regulations. 16 The regulations
provide both that the department "shall publish" its notice of intent to revoke
and that the antidumping order shall be revoked after five years if there is no objection.
The issue is the fate of the antidumping order when the five years is up and the
department does not publish its notice of intent to revoke. Complainant Mitsubishi argues
that the order expires after five years notwithstanding the failure of the department to
publish its notice. The department argues that expiration can only occur after the
department gives notice and no objections are raised.
Reluctantly, and for the reasons outlined below, this panel
concludes that under the existing regulatory scheme the failure of the Commerce Department
to publish its notice in this matter did not cause the antidumping order to lapse of its
own accord, and that the department acted appropriately in withdrawing its notice of
intent to revoke following the objections by the unions. The panel reaches this conclusion
based on both the language of the regulations that it is called upon to apply, and the
decision of the Court of Appeals for the Federal Circuit in Kemira, which is guiding
precedent for the panel in this matter.
The regulations of the department present two conflicting
imperatives. The first is the requirement
that antidumping orders expire or lapse if five years pass without a request for an
administrative review. 18 The second is that the department publish timely notice of its
intent to revoke the order, before it lapses, to enable potential affected persons to
object. 19 In Kemira the department delayed ninety days in publishing
its notice of intent to revoke, and then initiated an administrative review of the order.
sought a preliminary injunction in the Court of International Trade against the department
in initiating an administrative review. 21 The CIT granted the injunction on the grounds that the failure of
any party to request an administrative review or to object to the revocation of the order
by the fifth anniversary required the department to revoke the order. 22
The CAFC reversed. While expressing dismay over the failure
of the department to follow its own rules in publishing a timely notice of its intent to
revoke the antidumping order, the court found that the failure to publish did not deprive
the department of the authority to retain the order following an objection based on
delayed publication. 23 Further, the court held that since Kemira had been unable to
demonstrate how it had been prejudiced by the failure to publish in a timely manner, there
was no basis for granting the injunction. 24
Mitsubishi argued before this panel that the much longer
delay in this case, almost two years, provided a sufficient basis for finding prejudice to
distinguish this case from Kemira. The panel is not unsympathetic to the argument.
Indeed, there is language in the Kemira decision indicating that an extended delay
might provide the basis for the requisite showing of prejudice. 25 Mitsubishi
suggested that the duties levied during the period of the department's delay offered a
quantifiable basis for finding prejudice. However, the language and operation of the
regulatory scheme here causes the panel to conclude that prejudice is a chimera that will
likely elude even the most sympathetic reviewers. For so long as parties opposing
revocation may defeat it by mere mention, no complainant can overcome the argument that no
prejudice exists because objection would have been raised whenever notice was published.
Timely notice would have been met with timely objection.
In this case there is ample evidence that the vigilance of
the unions would not have been relaxed had the notice been timely given. While this is
obviously a form of modest speculation by the panel and the parties, it is as credible, if
not more so, than the speculation complainant invites that the unions may not have
objected. And it is this speculation that the panel would have to give credence to in
concluding the nearly two years of antidumping duties provides the level of prejudice
necessary to meet the standard articulated in Kemira. Given the burden on the
complainant to demonstrate significant prejudice, the panel concludes that it has not made
such a showing.
Like the federal circuit panel in Kemira, the panel is not
sanguine about the conduct of the Commerce Department in this matter. Notwithstanding
assurances of department counsel that both cases represented inadvertent errors that will
be solved by computerization, the panel is concerned that the department lacks any
incentive to give the five-year "sunset" provision meaning. So long as the
"required" revocation of the order must be preceded by the "required"
notification, the department has no reason for concern over failure to meet the deadline.
These regulations reflect the department's efforts to implement the sunset provisions for
antidumping orders under the 1994 General Agreement on Tariffs and Trade. Their
unfortunate interplay seems to dilute the mandatory nature of that provision and the U.S.
obligation under the GATT. 26
V. CONCURRING OPINION OF PANELIST W. ROY HINES
I concur in the Panel's finding to affirm the decision of
the Department of Commerce not to revoke the antidumping duty order. However, I do not
fully share the views set forth in the discussion relating to the decision.
My difficulty relates to two points. First, concerns the
statement that the regulations present two "conflicting imperatives". In my
view, the two requirements of CFR 353.25 ("notice of intent to revoke" and
"revocation") are clearly sequential and mandatory steps in the process. As
such, an antidumping order cannot expire or lapse of its own accord. Positive actions are
required to (a) issue the notice of intent to revoke and (b) if no objection is received,
revoke the order by the Secretary. Second, relates to the discussion of prejudice and the
implication that if the Panel found "prejudice" the matter might be remanded to
Commerce for an action other than the issuance of a new notice of "intent to
revoke". As I understand Article 1904 of NAFTA, a remand to this effect would not be
possible since the Panel would be limited to a remand ordering the application of the
provisions of the U.S. antidumping law as set out in CFR
353.25 in accordance with the sequence provided therein."
For the reasons stated above, the Panel hereby affirms the
decision of the Department of Commerce not to revoke the antidumping duty order on Color
Picture Tubes from Canada.
Signed in the original by:
|May 6, 1996
||Howard N. Fenton, III, Chairperson
|May 6, 1996
||Donald J.M. Brown
|May 6, 1996
||W. Roy Hines
|May 6, 1996
|May 6, 1996
Fed. Reg. 27720 (May 25, 1995).
parallel action brought by Mitsubishi in the Court of International Trade has been
dismissed due to lack of subject matter jurisdiction. Mitsubishi Electronics
Canada, Inc. v. Brown, No. 96-39 (Ct. Int'l. Trade 1996).
Fed. Reg. 429 (Jan. 7, 1988).
Fed. Reg. 992 (January 11, 1989); 55 Fed. Reg. 2398 (January 24, 1990); 56 Fed. Reg. 1793
(January 17, 1991); 56 Fed. Reg. 66846 (December 26, 1991); 58 Fed. Reg. 4148 (January 13,
Fed. Reg. 564 (January 5, 1994).
of Termination of Administrative Review, 59 Fed. Reg. 14607 (March 29, 1994).
Fed. Reg. 66906 (December 28, 1994).
Fed. Reg. 27720 (May 25, 1995).
Electric Industrial Co., Ltd. v. United States, 750 F.2d
927, 933 (Fed. Cir. 1984).
v. Oklahoma, 503 U.S. 91, 113 (1992).
R..R.. Passenger Corp. v. Boston & Marine Corp.,503
U.S. 407, 417 (1992). "Since Commerce administers the trade laws and its implementing
regulations, it is entitled to deference in its reasonable interpretations of those laws
and regulations." PPG Industries, Inc. v. United States, 712 F. Supp. 195, 198 (Ct. Int'l. Trade 1989)
aff'd.978 F.2d 1232 (Fed. Cir. 1992).
F.3d 867 (Fed. Cir. 1995).
Id. at 869.
19 C.F.R. Section 353.25(d)(4).
C.F.R. Section 353.25(d)(4)(iii).
19 C.F.R. Section 353.25(d)(4)(i).
61 F.3d at 869.
Fibres Oy v. United States, 858 F. Supp. 229 (Ct. Int'l.
61 F.3d at 875.
Id. at 875-76.
Agreement on Tariffs and Trade 1994. See Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994, Article 11, Sec. 11.3.