Slip Op. 05-158
UNITED STATES COURT OF INTERNATIONAL TRADE
- - - - - - - - - - - - - - - ---x
:
GUANGZHOU MARIA YEE FURNISHINGS, :
LTD., et al. : Before: Pogue, Judge
Plaintiffs, :
:
: Court No. 05-00065
v. :
:
UNITED STATES, :
:
Defendant, :
:
AMERICAN FURNITURE :
MANUFACTURERS COMMITTEE FOR :
FAIR TRADE, et al. :
:
Defendant-Intervenors. :
- - - - - - - - - - - - - - - ---x
OPINION
[Department of Commerce’s determination remanded.]
Dated: December 14, 2005
Arent Fox Kintner Plotkin & Kahn, PLLC (Nancy A. Noonan and
Patricia P. Yeh) for the Plaintiff;
Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director, Patricia M. McCarthy, Assistant Director, Commercial
Litigation Branch, Civil Division U.S. Department of Justice
(Michael D. Panzera), Rachel Wenthold, International Attorney-
Advisor, Of Counsel, Office of Chief Counsel for Import
Amdinistration, Office of the General Commerce, U.S. Department of
Commerce, for the Defendant;
King & Spalding LLP (Joseph W. Dorn, Stephen A. Jones, and Jeffrey
M. Telep) for Defendant-Intervenor.
POGUE, Judge: This case involves a challenge by Guangzhou Maria
Yee Furnishings, Ltd., et.al. (“Maria Yee”) to the Department of
Case No. 05-00065 Page 2
Commerce’s (“Commerce” or “Defendant”) determination in Wooden
Bedroom Furniture from the People’s Republic of China, 69 Fed. Reg.
67,313, 67,317 (Dept. Commerce Nov. 17, 2004) (final determination
of sales at less than fair value) (“Final Determination”).
Plaintiff asserts that Commerce denied it separate rate status
because Commerce improperly rejected as untimely evidence of Maria
Yee’s independence from the Chinese government’s control.
In light of the court’s decision in Decca Hospitality
Furnishings LLC, v. United States, 29 CIT __, 391 F. Supp. 2d 1298
(2005) (“Decca”), and the principles examined therein, the court
remands this case for further consideration consistent with this
opinion.
BACKGROUND
The procedural history of this matter is detailed in the
court’s decision in Decca. For ease of reference, the court
summarizes the key facts here.
As in Decca, this case arises from the Department of
Commerce’s antidumping investigation of wooden bedroom furniture
exporters/producers from the People’s Republic of China (“PRC”).
See Wooden Bedroom Furniture from the People’s Republic of China,
68 Fed. Reg. 70,228, 70,228 (Dept. Commerce Dec. 17, 2003)
(initiation of antidumping duty investigation) (“Notice of
Initiation”).
Case No. 05-00065 Page 3
Because the PRC is a non-market economy (“NME”), in
investigations of PRC exporters/producers, Commerce presumes that
all companies operating in the PRC are state-controlled. Based on
this presumption, in this investigation, Commerce applied the PRC
antidumping rate of 198.08% to all companies that did not
sufficiently demonstrate their independence from the Chinese
government. Final Determination, 69 Fed. Reg. at 67,317. Those
companies that were able to demonstrate both de facto and de jure
independence from government control, Wooden Bedroom Furniture from
the People’s Republic of China, 69 Fed. Reg. 35,312, 35,319-20
(Dept. Commerce June 24, 2004) (notice of preliminary determination
and postponement of final determination) (“Preliminary
Determination”) were assigned an antidumping margin of 6.65%.
Wooden Bedroom Furniture from the People’s Republic of China, 70
Fed. Reg. 329, 330 (Dept. Commerce Jan. 4, 2005)(notice of amended
final determination of sales at less than fair value and
antidumping duty order). C o m m e r c e evaluated a company’s
independence from government control on the basis of information
timely submitted by companies in response to Commerce’s Section A
Questionnaire. Final Determination, 69 Fed. Reg at 67,315;
Preliminary Determination, 69 Fed. Reg. at 35,319-20; Section A
Questionnaire, P.R. Doc 297 at A-1 (“Section A Questionnaire”).
Commerce solicited responses to its Section A Questionnaire by
Case No. 05-00065 Page 4
sending the Section A Questionnaire to “mandatory respondents”1 and
to the Chinese Ministry of Commerce (“MOFCOM”) on February 2, 2004,
accompanied by a cover letter. Letter from Robert Bolling, Program
Manager AD/CVD Enforcement III to Liu Danyang, Director Bureau of
Fair Trade for Imports and Exports, Pl.’s Exh. 12, P.R. Doc. No.
297; see also Decision Memorandum, P.R. Doc 1933 at 345. Pursuant
to 19 C.F.R. § 351.301(c)(2),2 the February 2 letter established
February 23, 2004 as the deadline for responses to the Section A
1
In large investigations, Commerce identifies certain
participants as those required to respond during the
investigation. 19 U.S.C. § 1677f-1(c)(2) (2000); 19 C.F.R. §
351.204(c) (2004), see also Department of Commerce Mem. from
Deputy Assistant Sec’y, Imp. Admin., to James J. Jochum,
Assistant Sec’y for Imp. Admin., Re: Issues and Decision
Memorandum for the Less-Than-Fair-Value Investigation of Wooden
Bedroom Furniture from the People’s Republic of China (Dept.
Commerce Nov. 8, 2004), P.R. Doc 1933(“Decision Memorandum”) at
337; Final Determination, 69 Fed. Reg. at 67,313.
2
Pursuant to 19 C.F.R. § 351.301(c)(2):
(i) Notwithstanding paragraph (b)[see infra
n.3] of this section, the Secretary may
request any person to submit factual
information at any time during a proceeding.
(ii) In the Secretary's written request to an
interested party for a response to a
questionnaire or for other factual
information, the Secretary will specify the
following: the time limit for the response;
the information to be provided; the form and
manner in which the interested party must
submit the information; and that failure to
submit requested information in the requested
form and manner by the date specified may
result in use of the facts available under
section 776 of the Act and § 351.308.
Case No. 05-00065 Page 5
Questionnaire from “all parties” and the mandatory respondents.
February 2 Letter, P.R. Doc. No. 297 at 2.
Like the plaintiff in Decca, Maria Yee was not selected as a
mandatory respondent and asserts that it did not receive any
requests for information from Commerce. Pl.’s Mem. Supp. Mot. J.
Agency R. Pursuant to Rule 56.2 at 6 (“Pl. Br”); Pl. Reply Def.’s
and Def. Int.’s Mem. Opp. Pl.’s Rule 56.2 Mot. J. Agency R. at 2;
Decision Memorandum, P.R. Doc 1933 at 321. Because Maria Yee did
not timely respond to the Section A Questionnaire, Commerce found
that Maria Yee was state-controlled and therefore applied the PRC-
wide antidumping rate of 198.08% to Maria Yee.
On June 24, 2004, the Department of Commerce published its
Preliminary Determination and therein made explicit its reliance on
responses to the Section A Questionnaire for the determination of
separate rates for non-mandatory respondents. Preliminary
Determination, 69 Fed. Reg. at 35,319-20. Maria Yee asserts that
this was the first public statement by Commerce about the use of
Section A Questionnaires for separate rate applications in this
investigation. Pl. Br. at 15. After the publication of the
Preliminary Determination, on July 2, 2004, Maria Yee filed its
response to the Section A Questionnaire. Pl. Br. at 9; see also
Maria Yee’s Section A Response in Wooden Bedroom Furniture from the
People’s Republic of China, Letter from Jerome J. Zaucha & Nancy A.
Noonan, Arent Fox, to Donald L. Evans, Sec’y of Commerce, Attn:
Case No. 05-00065 Page 6
Imp. Admin, Int’l Trade Admin, Re: Submission of Section A Response
by Maria Yee in Wooden Bedroom Furniture from the People’s Republic
of China (July 2, 2004), Pl.’s Exh. 9.
Commerce rejected Maria Yee’s Section A submission asserting
that it was untimely because it was received after the February 23,
2004 deadline. Decision Memorandum, P.R. Doc. 1933 at 324.
Commerce based its rejection of the information on the fact that
its “consistent past practice has been to require companies to
respond to the Department’s Section A questionnaire, regardless of
whether wholly owned by a market-economy entity.” Decision
Memorandum, P.R. Doc. 1933 at 337. Moreover, Commerce reasoned
that its February 2, 2004 letter to MOFCOM and the mandatory
respondents provided “sufficient notice and opportunity to respond
to the Department’s Section A questionnaire.” Id. at 345.
Maria Yee contends that it is a Hong Kong-based producer of
wooden bedroom furniture that is independent from the Chinese
government, and further contends that it had no notice from
Commerce of the Section A Questionnaire, or of any deadlines
associated with the Questionnaire. Maria Yee brings this action
under USCIT R. 56.2 seeking a restoration of its July 2, 2004
submissions to the record, and asking the court to order the
Department of Commerce to grant Maria Yee the 6.65% separate rate.
Commerce asserts that Maria Yee was unknown to Commerce.
Moreover, Commerce argues that Maria Yee was not entitled to rely
Case No. 05-00065 Page 7
on or expect that Commerce would provide it with notice of the
Section A filing deadline. Rather, Commerce argues that because it
did not have knowledge of Maria Yee’s status as a producer of
wooden bedroom furniture, it was appropriate for Commerce to
provide notice by means of its letter to MOFCOM, as Commerce could
not have provided personal service.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction under 28 U.S.C. § 1581(c). The
court must sustain Commerce’s determination in an antidumping
investigation unless it is “unsupported by substantial evidence on
the record, or otherwise not in accordance with law.” 19 U.S.C. §
1516a(b)(1)(B).
To act in accordance with law, an agency, may not refuse to
recognize its own rules or regulations where it may prejudice a
party. Steen v. United States, 29 CIT __, Slip Op. 05-131 (Oct. 3,
2005) at 4-5 (citing Ariz. Grocery Co. v. Atchison, Topeka &
Sante Fe Ry. Co., 284 U.S. 370, 389 (1932)); but cf. Kemira Fibres
Oy v. United States 61 F. 3d 866, 875-76 (Fed. Cir. 1995) (as a
general rule an agency is required to comply with its own
regulations, however, if no prejudice is shown by such default, a
plaintiff cannot benefit from failure to adhere to its own
regulations, when Commerce has missed its own deadline). At the
Case No. 05-00065 Page 8
same time, an agency’s interpretation of its governing statute is
due deference, and must be upheld unless it is unreasonable. United
States v. Haggar Apparel Co, 526 U.S. 380, 386-90 (1999)
(discussing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842-43 (1984)).
Here, if Commerce, contrary to its own regulations, improperly
rejected Maria Yee’s submissions it thereby improperly presumed
Maria Yee’s place of incorporation (not to be Hong Kong), in which
case Commerce’s findings are unsupported by substantial evidence
and the case must be remanded for Commerce to enter a factual
finding. Fl. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)
(“If the record before the agency does not support the agency
action, if the agency has not considered all relevant factors . .
. the proper course, except in rare circumstances, is to remand to
the agency for additional investigation or explanation.”).
DISCUSSION
A.
The timelines set out in Commerce’s regulations provide a
final deadline, as established by 19 C.F.R. § 351.301(b)(2)3, and
3
Section 351.301(b)(1) states that for a final determination
in an antidumping investigation, submission of factual
information is due no later than “seven days before the date on
which the verification of any person is scheduled to commence.”
This provision establishes a deadline, in this matter, of July 6,
2004 (the verification process was due to commence on July 12th,
and the 5th was a federal holiday).
Case No. 05-00065 Page 9
a deadline for specific submissions, established by 19 C.F.R §
351.301(c)(2)(ii). See n. 2 supra. Commerce rejected Maria Yee’s
information as untimely even though it was submitted before the
deadline established by § 351.301(b)(2),4 claiming the controlling
deadline was established by § 351.301(c)(2)(ii). Accordingly, to
sustain Commerce’s determination the court must find that Commerce
properly invoked Section 351.301(c)(2)(ii).
Section 351.301(c)(2)(ii) provides the time limits and
deadlines for “[q]uestionnaire responses and other submissions on
request.” It states that in a written request “to an interested
party for a response to a questionnaire or for other factual
information” the Secretary will specify:
the time limit for the response; the information to be
provided; the form and manner in which the interested
party must submit the information; and that failure to
submit requested information in the requested manner by
the date specified may result in use of the facts
available under section 776 of the Tariff Act and §
351.308.
19 C.F.R. § 351.301(c)(2)(ii).
4
Specifically, Commerce claims that § 351.301(b)(2) provides
time limits for the verification of information previously
submitted, and not for the submission of new information. The
court, of course, defers to Commerce’s reasonable interpretation
of its own regulations. Koyo Seiko Co. v. United States, 36 F.3d
1565, 1570 (Fed. Cir. 1994). However, 301(b)(1) does provide a
definitive deadline and, by its terms, it is not specifically
limited to previously submitted information. Additionally, the
section can be read so as to provide a deadline for which
Commerce can proceed to the verification of all information
provided previous to this deadline.
Case No. 05-00065 Page 10
The purpose of this regulation is to allow Commerce to obtain
the information it needs in its antidumping investigations. 19
C.F.R. § 351.301(a). Commerce promulgated these regulations so as
to clarify filing requirements and deadlines for parties because in
the “past there ha[d] been some confusion over the deadline of
submission of factual information.” Antidumping Duties;
Countervailing Duties, 62 Fed. Reg. 27,296, 27,331 (Dept. Commerce
May 19, 1997)(“Preamble”). Given that Commerce exercises
considerable discretion in what information it seeks from
interested parties to the investigation, and the timelines for
their submissions, in instances of requiring additional information
through the use of questionnaires, Commerce, through its
regulation, provided for individual notice. 19 C.F.R.
§351.301(c)(2)(ii); Decca, 391 F. Supp. 2 at 1316 (“Commerce has
traded convenience for flexibility – it must take the bitter with
the sweet in this trade-off.” ). Additionally, Commerce, was well
aware of the burden that such information gathering might place on
smaller, less informed, foreign parties. See Preamble, 62 Fed.
Reg. at 27,334 (“[S]ection 782(c)(2) of the Act provides that the
Department will take into account difficulties experienced by
interested parties, particularly small companies, in supplying
information, and will provide any assistance that is
practicable.”).
Commerce claims that when Maria Yee submitted information on
Case No. 05-00065 Page 11
July 2, 2004, it missed the February 23, 2004 deadline for
submitting information established by the MOFCOM letter pursuant to
Section 351.301(c)(2)(ii). Accepting that the deadline is
established by Section 351.301(c)(2)(ii), the inquiry becomes, did
Commerce send acceptable notice “to” the parties as required by its
own regulations? 19 C.F.R. § 351.301 (c)(2)(ii); see also
Preamble, 62 Fed. Reg. at 27,333, (“Section 351.301)(c)(2)(ii)
provides that the Department must give notice of certain
requirements to each interested party from whom the Department
requests information.”)(emphasis added).
In Decca, this court held that where Commerce knows of a
party’s existence, Commerce may not rely on a “method of notice .
. . not reasonably calculated to provide parties with actual
notice of the filing requirements.” Decca, 391 F. Supp. 2d at
1310. In Decca this holding was based on the regulation, 19 C.F.R.
§ 351.301, in which “Commerce has voluntarily assumed the
obligation to send questionnaires to all parties.” Decca, 391 F.
Supp. 2d. at 1316.
Maria Yee represents the next step of the analysis. To what
extent is Commerce obligated to provide notice to unknown parties
as to information requirements and deadlines? The court here finds
that Commerce should have at least provided notice by publication.
Commerce claims that it could not give actual notice to an
interested party of which it was unaware, and the court agrees that
Case No. 05-00065 Page 12
to the extent the parties were not known to Commerce, Commerce is
circumscribed in providing actual notice.5 Conceding this point,
the question then becomes what form of notice would be reasonable
and viable to apprise parties that they would need to fill out the
Section A Questionnaire by February 23, 2004 in order to be
considered for a separate rate?
B.
Commerce’s main contention is that it provided notice through
MOFCOM, and that providing notice to interested parties in such a
5
The court does not address here the issue of which parties
were known and which parties were unknown to Commerce and why.
It appears from the record that Commerce knew of 211 producers of
wooden bedroom furniture. Preliminary Determination, 69 Fed.
Reg. at 35,313. Commerce has not indicated how it came to know
of these producers, and what procedures it follows in order to
ascertain producers, other than sending a letter to MOFCOM. If
Maria Yee were “reasonably ascertainable,” that is could be
identified through “reasonably diligent efforts” it might have
been necessary to send Maria Yee “[n]otice by mail or other means
as certain to ensure actual notice.” Tulsa Prof’l Collection
Servs. v. Pope, 485 U.S. 478, 491 (1988) (quoting Mennonite Bd.
of Missions v. Adams 462 U.S. 791, 798 n.4 & 800 (1983); but cf.
Dusenbury v. United States, 534 U.S. 161 (2002)(providing notice
by sending a certified letter to a prison inmate satisfied the
requirements of notice, even though the inmate did not receive
the notice). Unknown parties, on the other hand, are those
parties whose “interests are either conjectural or future or,
although they could be discovered upon investigation, do not in
due course of business come to knowledge . . . .” Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 317 (1950); see
also Chemetron Corp. v. Jones, 72 F. 3d 341,345-46 (3rd Cir.
1995); In re U.S.H. Corp of NY v. U.S. Home Corp., 223 B.R. 654,
659-60 (Bankr. S.D.N.Y. 1998). As we do not know the extent to
which Commerce searched for wooden bedroom furniture
manufacturers in China, we are proceeding under the assumption
that Maria Yee is properly classified as an unknown party.
Case No. 05-00065 Page 13
manner was reasonable. Def.’s Mem. Opp. Pl.’s Rule 56.2 Mot. J.
Agency R. at 19 (“Def. Br.”). Commerce’s argument, therefore,
hinges on its claim that notice to MOFCOM was “reasonably
calculated” to apprise unknown parties of the Section A filing
requirement and the February 23 filing deadline applied here.6
Commerce’s contention is both qualitative and quantitative.
Commerce’s quantitative contention is based on the number of
completed Section A Questionnaire submissions received. Commerce’s
qualitative analysis is that MOFCOM is in the best position to know
of and contact interested parties and therefore it is reasonable
and preferable for Commerce to rely on MOFCOM to provide notice to
the parties.7 The court considers each argument in turn.
In its quantitative argument, Commerce attempts to show, by
citing the number of responses to the Section A Questionnaire, that
notice through MOFCOM was reasonably calculated to alert interested
parties. Id. Commerce points to the fact that 120 producers of
wooden bedroom furniture producers timely responded to the Section
A Questionnaire, four of whom were parties unknown to Commerce, as
supporting the reasonableness of this method of notice. Def.
Suppl. Brief at 3-5. This court has addressed the fact that the
6
For a more detailed consideration of this issue see Decca,
391 F. Supp. 2d at 1310-11.
7
See Decca, 391 F. Supp. 2d at 1307-09 for a more detailed
discussion of the unreasonableness of relying on MOFCOM to help
parties rebut a presumption of state control.
Case No. 05-00065 Page 14
number of responses is in no way indicative of the reasonableness
of this method of notice. Decca, 391 F. Supp. 2d at 1310 n.17.
However, Commerce continues to cite to raw numbers as a means of
indicating the reasonableness of its method. Commerce has advanced
no new support or arguments as to how sending MOFCOM a
questionnaire, that included a statement of the deadline for
submission, is a reasonably calculated means of providing notice to
parties.
Neither Commerce nor the Defendant-Intervenors demonstrate
that the number of responses is in any way related to the letter to
MOFCOM, or that MOFCOM is in a better position to know of
interested parties. If anything, Commerce has indicated that it
received fewer responses by sending a Section A Questionnaire to
MOFCOM, 126 including mandatory respondents, Final Determination,
69 Fed. Reg. at 35,313, than it did by sending the Quantity and
Value (“Q & V”) Questionnaire directly to the parties, 137, id. at
35,320. Moreover, the Section A Questionnaire was sent later in
the investigation, the parties were provided with more time to
answer the Section A Questionnaires than the Q & V Questionnaire,
and the Section A Questionnaire was the questionnaire that was
determinative of a party’s eligibility for a separate rate. In
sum, Commerce’s numbers do not prove reasonableness.
Qualitatively, Commerce claims MOFCOM was in the best position
to know of interested parties. The fundamental problem with this
Case No. 05-00065 Page 15
method of claiming reasonableness is that even if MOFCOM is best
situated for this task, MOFCOM was not required to forward the
Questionnaires to the parties; indeed Commerce did not even request
MOFCOM to forward the Section A Questionnaire to third parties,
February 2 Letter, P.R. Doc. No. 297; Decca, 391 F. Supp. 2d at
1311. To rely on a government instrumentality to forward a letter
in order to provide notice, when this instrumentality is under no
obligation to do so, is in contravention of settled case law. See
Wuchter v. Pizzutti 276 U.S. 13, 24-25 (1928) (a statute
designating the Secretary of State as the person to receive process
must contain a provision that makes it reasonably probable that the
service be communicated to the party to be sued); Koster v.
Automark Indus., Inc., 640 F. 2d 77, 81 n. 3 (7th Cir. 1981) (“a
statutory provision is not reasonably calculated to provide notice
unless its terms relating to the sending of notice are
mandatory.”); Howard v. Jenny’s Country Kitchen, Inc., 223 F.R.D.
559, 564-66 (D. Kan. 2004) (service not proper when made on the
Kansas Secretary of State who mailed summons to the wrong place).
Contrary to Commerce’s assertions that MOFCOM is better placed
to ascertain interested parties and their addresses, Commerce has
not demonstrated that MOFCOM is an appropriate partner in notifying
parties. Indeed, Commerce’s own experience has been that MOFCOM
does not respond to Commerce’s inquiries. See Preliminary
Determination, 69 Fed. Reg at 35,321 (noting the failure of the
Case No. 05-00065 Page 16
Government of the PRC to respond to the Section A Questionnaire).
In the Preliminary Results in Certain Cased Pencils, the PRC
Ministry of Foreign Trade and Economic Cooperation (“MOFTEC”), the
predecessor to MOFCOM, did not respond to requests from Commerce
requesting that MOFTEC forward questionnaires to unlocatable
parties. Finally, the China Chamber of Commerce for Import &
Export of Light Industrial Products and Arts-Crafts responded
stating that it managed to forward the questionnaire to only two of
the seventeen parties for which Commerce did not have a correct
address. Certain Cased Pencils From the People’s Republic of
China, 67 Fed. Reg. 2402, 2403 n.1 (Dept. Commerce Jan. 17, 2002)
(preliminary results and recission in part of antidumping duty
administrative review). (Commerce ultimately never received
responses from any of the seventeen parties for which it solicited
aid from MOFTEC. Id.)
That Commerce’s approach was not reasonable is underscored
here by an entirely feasible and customary alternative: notice by
publication in the Federal Register. Mullane, 339 U.S. at 315
(stating that reasonableness of the form of notice chosen may be
defended if the “form chosen is not substantially less likely to
bring home notice than other of the feasible and customary
substitutes.”); Goldhofer Fahrzeugwerk GmbH & Co. v. United
States, 885 F. 2d 858, 861 (Fed. Cir. 1989)( "the reasonableness of
the notice provided must be tested with reference to the existence
Case No. 05-00065 Page 17
of feasible and customary alternatives and supplements to the form
of notice chosen.") (quoting Greene v. Lindsey, 456 U.S. 444, 454)
(1982)(internal citations omitted).
It is well-established that the “Federal Register is a
publication in which the public can find the details of the
administrative operations of Federal agencies.” H. R. Rep. No.
89-1497 (1966) reprinted in 1966 U.S.C.C.A.N. 2418, 2424 (1966)
(discussing the Freedom of Information Act).8 Moreover, that
notice by publication is a feasible and customary substitute for
unknown parties is uncontroverted. See Mullane 339 U.S. at 317
(notice by publication to unknown parties is sufficient); Tulsa,
485 U.S. 478, 490 (“For creditors who are not ‘reasonably
ascertainable’ publication notice can suffice.”); Rodway v. U. S.
Dep’t of Agric., 514 F. 2d 809, 815 (D.C. Cir. 1975) (“Absent
actual notice, the public should be held accountable only for
notice plainly set forth in the Federal Register.”); Chemetron, 72
F. 3d 341 (notice by publication sufficient for unknown parties);
Friedman v. N.Y. City Dep’t of Hous. and Dev. Admin., 688 F. Supp.
8
The report continues “[t]hey would be able to find out
where and by whom decisions are made in each Federal agency and
how to make submittals or requests.” The legislative history
makes clear that the Act seeks to provide ”incentive for agencies
to publish “the necessary details about their official activities
in the Federal Register” through the “provision that no person
shall be ‘adversely affected’ by material required to be
published – or incorporated by reference – in the Federal
Register but not so published.” H. R. Rep. No. 89-1497, 1966
U.S.C.C.A.N. at 2424 (1966).
Case No. 05-00065 Page 18
897, 901 (S.D.N.Y. 1988) (“As notice by publication, the usual form
of constructive notice was not undertaken in this case, the court
must consider whether the individual plaintiffs were constructively
notified in any other suitable manner.”); In re U.S.H. Corp., 223
B.R. at 6660 (unknown creditors, who would have only been found by
conjecture, received constructive notice through publication).
In the case at bar, Commerce’s attempt to provide notice
through MOFCOM is not one that is supported by reliability,
obligation, regulation, or statute. Particularly in comparison to
a more traditional form of providing notice, notice by publication,
Commerce’s method of providing notice here was not reasonable.
D.
Commerce and Defendant-Intervenors state that after being put
on notice of the investigation, Maria Yee had a duty to inquire as
to the further steps, if any, they were required to take.
Commerce’s argument essentially rests on the proposition that all
forms of constructive notice are equal; therefore, so long as
notice to MOFCOM was “constructive notice,” Commerce’s method of
notice was proper.
The problem with this view is that it is in contradiction to
the announced regulation. Commerce does not point to any
publication where it announces that parties interested in being
evaluated for a separate rate need to inquire of either MOFCOM or
the Department of Commerce, or search on the internet for
Case No. 05-00065 Page 19
additional forms and deadlines. Nor does Commerce assert that the
form of notice provided was in accordance with its own regulations.
Rather, Commerce asks the court to read a regulation that states
affirmatively that Commerce will contact parties directly, as one
that somehow puts parties on notice that they are required to
contact Commerce or the Chinese Government to determine the steps
they are required to take. Commerce’s request is not reasonable.
As directed by the Notice of Initiation, the parties looked to
the announced policy and regulations of the Commerce Department, in
order to ascertain how Commerce would be conducting the
investigation and the time limits that would be employed. Notice
of Initiation, 68 Fed. Reg. at 70,229, 70,231. As noted
previously, the regulations state that when additional information
is needed from the parties, Commerce will send a written request to
the parties. 19 C.F.R. § 351.301(c)(2)(ii); Preamble, 62 Fed. Reg.
at 27,333. The regulations do not make parties aware that they
need to contact other bodies, or search the internet, in order to
ascertain what additional material is required of them.
Commerce also argues that Maria Yee had actual notice of the
deadline for the Section A Questionnaire, as Annex III of 19 C.F.R
pt. 351 provides that “the general deadline for Section A of the
questionnaire in investigations is 51 days after initiation, . . .
and further indicates that all parts of the questionnaire need to
be completed prior to Commerce’s preliminary determination.” Def.
Case No. 05-00065 Page 20
Br. at 27. Annex III, in the form of a table, does state the
general deadline for the submission of the Section A Questionnaire
is 51 days after the Notice of Initiation. 19 C.F.R. pt. 351,
Annex III; see also Decca 391 F. Supp. 2d at 1306 n. 13. However,
this information cannot constitute notice to the parties of the
need to fill out a Section A Questionnaire. A party would only
become aware of the applicability of the general deadline, were
they put on notice of the need to fill out the Section A
Questionnaire. Commerce cannot claim that its prior practice or
decisions provide such notice. See Decca, 391 F. Supp. 2d at 1311-
14. Moreover, footnote 1 to Annex III indicates the discretionary
nature of these deadlines by emphasizing that the deadlines are
approximate, and can be established by the Secretary. 19 C.F.R.
pt. 351, Annex III. This underscores the point that notice of the
applicable deadlines was to be provided by reliance on
§351.301(c)(2)(ii) through written request by the Secretary to
interested parties.
Commerce also argues that Maria Yee had actual notice of the
Section A Questionnaire because Maria Yee obtained the Respondent
Selection Memorandum. Commerce’s claim is, at least, uncertain as
the Respondent Selection Memorandum does not provide any notice as
to the requirement for non-mandatory respondents to submit Section
A Questionnaires, nor of a deadline for filing; but, even more
importantly, this is a question of fact which Commerce has not
Case No. 05-00065 Page 21
found. Therefore, this court may not find it for them. If
Commerce wishes to argue that Maria Yee had actual notice of the
Section A Questionnaire and its attendant deadlines through the
Respondent Selection Memorandum, it must make a factual
determination that Maria Yee received this Memorandum prior to the
February 23, 2004 deadline.
As noted in Decca, the court understands the difficulties
that Commerce faces in identifying multiple parties in China, and
sending direct notification to their addresses. Decca, 391 F.
Supp. 2d at 1316. However, as Commerce has itself assumed a duty
of providing notice to parties, 19 C.F.R § 351.301(c)(2),
Preamble, 62 Fed. Reg. at 27,333, Commerce’s means of providing
notice must be “reasonably calculated” to provide notice and more
than that of a “mere gesture,” Mullane, 399 U.S. at 315, and cannot
be relying on “chance alone” to reach the interested party,
Goldhofer, 885 F. 2d at 861.
CONCLUSION
For the foregoing reasons the court remands this case to
Commerce for reconsideration consistent with this decision.
Commerce’s remand determination shall be filed by January 30, 2006,
and Parties’ comments due by February 13, 2006. Rebuttal comments
shall be filed by February 27, 2006.
Case No. 05-00065 Page 22
IT IS SO ORDERED.
/s/ Donald. C. Pogue
Donald C. Pogue
Judge
Dated: December 14, 2005
New York, New York