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Ust Inc. v. United States

Decided: October 15, 1987.

UST, INC. AND TSUBAKIMOTO CHAIN CO., PLAINTIFFS-APPELLANTS,
v.
THE UNITED STATES, MALCOLM BALDRIDGE, SECRETARY OF COMMERCE; BRUCE S. SMART, JR., UNDERSECRETARY OF COMMERCE FOR INTERNATIONAL TRADE; PAUL FREEDENBERG, ACTING ASSISTANT SECRETARY OF COMMERCE FOR TRADE ADMINISTRATION; GILBERT L. KAPLAN, DEPUTY ASSISTANT SECRETARY FOR IMPORT ADMINISTRATION; LEONARD M. SHAMBON, DIRECTOR, OFFICE OF COMPLIANCE, DEFENDANTS-APPELLEES



Appealed from United States Court of International Trade, Judge Carman.

Friedman, Newman, and Archer, Circuit Judges.

Friedman

FRIEDMAN, Circuit Judge

This is an appeal from the portion of an order of the Court of International Trade that denied a preliminary injunction barring the Department of Commerce from requiring the appellant to answer questionnaires the Department had issued to them in connection with its administrative review of an antidumping order. We affirm.

I

In April 1973, the Secretary of the Treasury published T.D. 73-100, a "Dumping Finding" that non-bicycle roller chain (roller chain) "from Japan is being, or is likely to be, sold at less than fair value within the meaning of section 201(a) of the Antidumping Act, 1921, as amended [then 19 U.S.C. § 160(a), now § 1673]." The effect of this finding was to subject the "dumped merchandise" to antidumping duties. 19 U.S.C. § 1673 (Supp. II 1984).

The administration of the Antidumping Act was transferred to the Department of Commerce (Commerce) in 1979. See Exec. Order No. 12,175, 3 C.F.R. § 463 (1980). Under 19 U.S.C. § 1675(a) (Supp. II 1984), Commerce is required to review at least annually the basis and amount of duty to be assessed under an antidumping duty order, and to publish the results of each such review in the Federal Register. The Antidumping Act provides that, after such a review, Commerce "may revoke" the antidumping duty order. 19 U.S.C. § 1675(c) (Supp. II 1984). Commerce's regulations authorize revocation

whenever the Secretary determines that sales of merchandise subject to an Antidumping Finding or Order . . . are no longer being made at less than fair value . . . and is satisfied that there is no likelihood of resumption of sales at less than fair value. . . . Ordinarily, consideration of such revocation . . . will be made only subsequent to [an administrative] review.

19 C.F.R. § 353.54(a) (1981-86) (Commerce's § 353.54 is substantively identical to the Treasury regulation that it replaced, § 153.44 (1980)).

Prior to revoking an antidumping order, Commerce publishes a "Notice of Tentative Determination to Revoke or Terminate." 19 C.F.R. § 353.54(e) (1981-86). "As soon as possible after publication," 19 C.F.R. § 353.54(f), but after opportunity has been provided "for interested parties to present views with respect to the tentative revocation," 19 C.F.R. § 353.54(e),

the Secretary will determine whether final revocation . . . is warranted. In cases where an application for a revocation . . . is based on the absence of sales at less than fair value with respect to the imported merchandise and the dispositive date for establishing a two-year period of no sales at less than fair value is the date of publication of the Finding or Order, the Secretary may determine that a final revocation . . . is warranted only if the firm involved provides information showing no sales at less than fair value with respect to the subject merchandise up to the date of publication of the "Notice of Tentative Determination to Revoke or Terminate."

19 C.F.R. § 353.54(f) (1981-86) (typographical errors corrected).

The appellant Tsubakimoto Chain Company (Tsubakimoto) manufactures roller chain in Japan, and the appellant UST, Inc. imports roller chain manufactured by Tsubakimoto. Tsubakimoto was one of the companies that T.D. 73-100 found to have engaged in dumping.

Following its administrative reviews for the period April 1, 1979, to March 31, 1981, Commerce published on September 1, 1983, its tentative determination to revoke T.D. 73-100 with respect to Tsubakimoto. 48 Fed. Reg. 39,673 (1983). Commerce also stated that prior to issuing a final revocation determination, it would conduct further administrative reviews and that if the tentative ...


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