Slip Op. 99-126
UNITED STATES COURT OF INTERNATIONAL TRADE
_________________________________
:
EVEREADY BATTERY COMPANY, INC., :
:
Plaintiff, :
:
v. :
:
THE UNITED STATES, : Court No. 98-09-02816
:
Defendant, :
:
and :
:
CHEMETALS, INC. and KERR-MCGEE :
CHEMICAL, LLC, :
:
Defendant-Intervenors. :
________________________________ :
[Defendant’s motion to dismiss granted.]
Dated: November 23, 1999
Ablondi, Foster, Sobin & Davidow (Gary L. Bohlke) for
plaintiff.
Lyn M. Schlitt, General Counsel, James A. Toupin, Deputy
General Counsel, United States International Trade Commission
(Cynthia P. Johnson), for defendant.
Gardner, Carton & Douglas (W.N. Harrell Smith, IV and
William M. Ejzak) for defendant-intervenor Kerr-McGee Chemical
LLC.
Squire, Sanders & Dempsey, L.L.P. (Ritchie T. Thomas) for
defendant-intervenor, Chemetals, Inc.
Court No. 98-09-02816 Page 2
OPINION
RESTANI, Judge: Plaintiff Eveready appeals a decision of
the International Trade Commission (“ITC” or “the Commission”)
denying Eveready’s request for a changed circumstances review
pursuant to 19 U.S.C. § 1675(b) (1994). Eveready seeks this
review for an antidumping duty order on electrolytic manganese
dioxide (“EMD”) imported from Greece, issued on April 17,
1989. See EMD from Greece, 54 Fed. Reg. 15,243 (Dep’t
Commerce 1989). The Commission has made a motion to dismiss,
arguing that its institution of a sunset review pursuant to 19
U.S.C. § 1675(c) (1994) renders Eveready’s action before this
court moot.
Background
Eveready Battery Company is one of three U.S. producers
of EMD,1 and a purchaser of EMD from both U.S. and foreign
manufacturers. EMD from Greece and Japan, 63 Fed. Reg.
30,254, 30,255 (ITC 1998) (request for comments regarding
institution of section 751(b) review). On May 26, 1998
Eveready filed a request with the ITC for a changed
1 “EMD is a major ingredient in the manufacture of dry
cell batteries used in portable electronic devices.” EMD from
Greece and Japan, 63 Fed. Reg. 30,254, 30,255 (ITC 1998)
(request for comments regarding institution of section 751(b)
review).
Court No. 98-09-02816 Page 3
circumstances review regarding EMD imports from Greece. Id.
at 30,255. The Commission published its notice seeking
comments on Eveready’s request on June 3, 1998. The changed
circumstances in Eveready’s request alleged that there had
been structural changes in battery consumption, and argued
that the revocation of the existing antidumping duty order for
Greece would be “limited to such a small quantity that it
could have no material impact on EMD producers in the United
States.” Id. The Commission asked that submissions also
address the possibility of the ITC self-initiating a review of
the outstanding order on EMD from Japan. Id.
Two months later, the Commission dismissed Eveready’s
request for the institution of a changed circumstances review.
EMD from Greece and Japan, 63 Fed. Reg. 43,192 (ITC 1998)
(dismissal of request for institution of section 751(b) review
investigation). Eveready challenged the determination in this
court, and made a motion for summary judgment requesting that
the court order the Commission to conduct a changed
circumstances review.2
2 Defendant-intervenors, Chemetals, Inc. and Kerr-
McGee Chemical, LLC, filed a response to Eveready’s motion for
summary judgment, but have not participated in the motion to
dismiss.
Court No. 98-09-02816 Page 4
On May 3, 1999, the ITC instituted a review of EMD from
Greece and Japan, pursuant to 19 U.S.C. § 1675(c), “to
determine whether revocation of the antidumping duty orders on
[EMD] from Greece and Japan would be likely to lead to
continuation or recurrence of material injury.” EMD from
Greece and Japan, 64 Fed. Reg. 23,675, 23,675 (ITC 1999)
(institution of five year reviews). The Commission then moved
to dismiss Eveready’s complaint, on the grounds that
institution of a 19 U.S.C. § 1675(c) review rendered
Eveready’s action before the court moot. The court’s Order of
July 20, 1999 denied ITC’s motion without prejudice to renewal
“if a full review [was] initiated under sunset provisions [19
U.S.C. § 1675(c)].” On August 25, 1999 the Commission
published its determination to conduct a full five-year review
of EMD from Greece and Japan, pursuant to 19 U.S.C. §
1675(c)(5). EMD from Greece and Japan, 64 Fed. Reg. 46,407
(ITC 1999) (notice of ITC to conduct full five-year reviews).
The Commission now renews its motion to dismiss on the grounds
that its review of EMD from Greece and Japan pursuant to 19
U.S.C. § 1675(c) moots Eveready’s appeal of the Commission’s
denial of a review pursuant to 19 U.S.C. § 1675(b).
Court No. 98-09-02816 Page 5
Discussion
The Commission argues that the institution of a full 19
U.S.C. § 1675(c) review, a “sunset” review, gives Eveready
what it is requesting, namely, an investigation as to whether
revocation of the antidumping order would result in the
continuance or recurrence of material injury. In its response
to the Commission’s motion to dismiss, Eveready argues that a
changed circumstance review under 19 U.S.C. § 1675(b) is
“fundamentally different” from a five-year review under 19
U.S.C. § 1675(c) and, consequently, that the Commission’s
initiation of a sunset review does not render this action
moot.
Because Article III of the Constitution requires that the
court adjudicate only a presently pending case or controversy,
jurisdiction is improper if the action is moot.3 See
Associacao Dos Industriais de Cordoaria E Redes v. United
States, 17 CIT 754, 759, 828 F. Supp. 978, 984 (1993)
(citations omitted). The test for whether an action is moot
is whether a present controversy exists as to which effective
3 The court has subject matter jurisdiction over
Eveready’s complaint pursuant to 28 U.S.C. § 1581(c) (1994)
and would review the ITC’s decision in the changed
circumstances review pursuant to the arbitrary and capricious
standard of review. See 19 U.S.C. § 1516a(b)(1)(A) (1994).
Court No. 98-09-02816 Page 6
relief may be granted. Id.; see also Verson v. United States,
5 F. Supp.2d 963, 966 (Ct. Int’l Trade 1998) (“case will be
dismissed as moot when the challenge presented to the Court
cannot result in a meaningful remedy.”) (citations omitted).
If the Commission’s institution of a full sunset review
accords Eveready all of the relief it sought by suing for the
institution of a changed circumstances review, the current
action will be rendered moot. See 13A Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 3533.2, at 238 (2d ed. 1984) (“Action by the
defendant that simply accords all the relief demanded by the
plaintiff may have the same effect as settlement [which
renders an action moot].”) The court will not order the
Commission to do “that which it has already done.” See Huron
v. Richards, 997 F.2d 1168, 1175 (6th Cir. 1993) (plaintiffs’
request that FAA conduct an environmental assessment (“EA”)
rendered moot by agency’s issuance of a final environmental
impact statement (“EIS”) because “agency has now done all that
the regulations would require if [an] . . . EA had indicated
the need for an EIS . . . . Nothing would be gained by
ordering an EA”).
A changed circumstances review of an antidumping duty
order is appropriate whenever Commerce or the Commission
Court No. 98-09-02816 Page 7
receives information, or a request from an interested party,
which shows changed circumstances sufficient to warrant a
review of a determination which resulted in an antidumping
duty order. 19 U.S.C. § 1675(b)(1)(A). In a changed
circumstances review the party seeking revocation of an
antidumping order has the burden of persuasion with respect to
the sufficiency of changed circumstances to warrant such
revocation. 19 U.S.C. § 1675(b)(3)(A). The Commission
conducts its review to determine whether revocation of the
order is likely to lead to continuation or recurrence of
material injury. 19 U.S.C. § 1675(b)(2)(A).
The passage of the Uruguay Round Agreements Act (“URAA”)
created a new 19 U.S.C. § 1675(c), which requires that
Commerce and the Commission automatically conduct a five-year
review of an antidumping duty order. These reviews are
commonly referred to as “sunset reviews.” In conducting a
sunset review, Commerce and the Commission must determine
whether revocation of the order would be likely to lead to
continuation or recurrence of dumping and of material injury.
See 19 U.S.C. § 1675(c)(1). The automatic initiation of
sunset reviews avoids placing an unnecessary burden on the
domestic industry and promotes efficiency of administration.
Court No. 98-09-02816 Page 8
See Statement of Administrative Action (“SAA”) at 879,
reprinted in 1994 U.S.C.C.A.N. 3773, 4205-06.4
The antidumping duty determination at issue in this case
was already in effect prior to the passage of the URAA, and is
therefore considered a transition order.5 See 19 U.S.C. §
1675(c)(6)(C)(ii). The statute requires that the Commission
and Commerce commence a review of transition orders by the
forty-second month after the date such orders are issued, with
a review of all transition orders having been initiated by the
fifth anniversary after such orders are issued. See 19 U.S.C.
§ 1675(c)(6)(A)(i).
4 “[T]his statement represents an authoritative
expression by the Administration concerning its views
regarding the interpretation and application of the Uruguay
Round agreements, both for purposes of U.S. international
obligations and domestic law. Furthermore, the Administration
understands that it is the expectation of the Congress that
future Administrations will observe and apply the
interpretations and commitments set out in this Statement.”
SAA at 656, 1994 U.S.C.C.A.N. at 4040.
5 The standards set out in 19 U.S.C. § 1675(c)(1) for
a sunset review are applicable to reviews of transition orders
as well. The only significant difference in a sunset review
of a transition order is the timing of the review. Transition
orders are treated as issued on the date the WTO Agreement
entered into force with respect to the United States. See 19
U.S.C. § 1675(c)(6)(D). The order is therefore deemed to have
issued on January 1, 1995, the date the WTO agreement entered
into force with respect to the United States. See Gerald
Metals, Inc. v. United States, 132 F.3d 716, 718 n.* (Fed.
Cir. 1997).
Court No. 98-09-02816 Page 9
The standard applied by Commerce and the Commission in
conducting a sunset review is the same as the standard applied
in a changed circumstances review. Specifically, the
Commission must determine whether revocation of the order
would likely lead to continuation or recurrence of material
injury. Compare 19 U.S.C. § 1675(b)(2)(A) with 19 U.S.C. §
1675(c)(1). Moreover, 19 U.S.C. § 1675a (1994) groups both
sections, § 1675(b) and (c), together in stating special rules
for determining the likelihood of continuation or recurrence
of material injury. See SAA at 883, 1994 U.S.C.C.A.N. at 4208
(“new section 752 [1675a] . . . establishes standards to be
applied by Commerce and the Commission in conducting changed
circumstances and five-year [sunset] reviews.”) (emphasis
added).
In conducting a sunset or changed circumstances review of
an antidumping order, the Commission is required to consider
the same factors, namely, the likely volume of imports, price
effects, and impact of imports of the subject merchandise on
the industry if the order is revoked. See 19 U.S.C. §
1675a(a)(1). The only difference of significance in the two
types of reviews is that Eveready would bear the burden of
persuasion in a changed circumstances review, but has no such
burden in a sunset review. See 19 U.S.C. § 1675(b)(3)(A).
Court No. 98-09-02816 Page 10
This difference makes a sunset review more favorable to
Eveready than a changed circumstances review.6 Eveready
nevertheless insists that the two reviews are different and
offers two reasons to support this argument. Eveready states
that the Commission may not cumulatively assess the volume and
effect of imports of EMD from all countries in a changed
circumstances review, while it is authorized to do so in a
sunset review. Eveready also argues that in considering the
magnitude of the dumping margin, the margin considered in a
sunset review is different from the dumping margin considered
in a changed circumstances review. Both of these arguments,
however, are without merit.
A. Cumulation
Eveready argues that in a sunset review, the Commission
is authorized to cumulate imports to determine whether there
would be a continuation or recurrence of injury, whereas in a
6 The Commission also notes another difference which
could benefit Eveready in this case. If the Commission
determines in the sunset review that revocation of the order
would not likely lead to continuation or recurrence of
material injury, the revocation of the order will be made
effective retroactively to January 1, 2000. See 19 C.F.R. §
351.222(i)(2)(ii) (1999) (revocation of transition orders
effective on January 1, 2000). By contrast, there is no
retroactive provision when the Commission revokes an order
pursuant to a changed circumstances review. See 19 C.F.R. §
351.222(g)(4) (revocation effective on date of notice of
revocation).
Court No. 98-09-02816 Page 11
changed circumstances review, the Commission is “forbidden by
law” to cumulate. See Pl.’s Resp. Br. at 5-6. This argument
is unsupported. Pursuant to the statute, the Commission has
the discretion to decide whether to cumulate in both types of
reviews. The statute provides in relevant part:
[T]he Commission may cumulatively assess the volume and
effect of imports of the subject merchandise from all
countries with respect to which reviews under section
1675(b) or (c) of this title were initiated on the same
day, if such imports would be likely to compete with each
other and with domestic like products in the United
States market.
19 U.S.C. § 1675a(a)(7) (emphasis added). The SAA also notes
that “[n]ew section 752(a)(7) [1675a(a)(7)] grants the
Commission discretion to engage in a cumulative analysis.”
SAA at 887, 1994 U.S.C.C.A.N. at 4212 (emphasis added).
Because the Commission has such discretion, it is not obliged
to cumulate in either a changed circumstances or sunset
review, providing Eveready with the same relief under either
type of review.
Eveready contends that since there was only one changed
circumstances review requested for Greece, if this court
remanded to the Commission for the initiation of a changed
circumstances review, the review would only be applicable to
Greece. This argument ignores the fact that the Commission
has the authority to self-initiate a changed circumstances
Court No. 98-09-02816 Page 12
review in addition to initiating a review in response to a
formal request. See 19 C.F.R. § 207.45(c) (1999).7 The
Commission has previously exercised its authority to self-
initiate a review of multiple countries where a request for
review was received for only one country. See Titanium Sponge
from Japan, Kazakhstan, Russia, and Ukraine, USITC Pub. 3119,
at 1 n.2, Inv. Nos. 751-TA-17-120 (Aug. 1998) (request filed
with respect to Russia and Commission self-initiated review
with respect to three other countries subject to orders).
When the Commission published a notice in the federal
register seeking comments on Eveready’s request for a changed
circumstances review with regard to EMD from Greece, it also
asked that submissions address the possibility of the
Commission self-initiating a review of EMD from Japan. EMD
from Greece and Japan, 63 Fed. Reg. at 30,255. The Commission
never initiated a changed circumstances review for either
7 This regulation provides in relevant part:
Within thirty (30) days after the close of the period for
public comments following publication of the receipt of a
request, the Commission shall determine whether the
request shows changed circumstances sufficient to warrant
a review and, if so, shall institute a review
investigation. The Commission may also institute a
review investigation on its own initiative.
19 C.F.R. § 207.45(c).
Court No. 98-09-02816 Page 13
Greece or Japan because it determined that there were not
changed circumstances sufficient to warrant institution of a
review under 19 U.S.C. § 1675(b). EMD from Greece and Japan,
63 Fed. Reg. at 43,192. Moreover, the ITC noted that the
request only concerned imports from Greece, but nevertheless
dismissed the 19 U.S.C. § 1675(b) investigation with regard to
both Greece and Japan. Id. at 43,192 n. 1 (“The request
concerned only imports from Greece. However . . . the
Commission also solicited comments on the possibility of self-
initiating a review of the outstanding order on imports from
Japan.”).
Eveready bases its argument forbidding cumulation in a
changed circumstances review on the language in 19 U.S.C. §
1675a(a)(7) which permits cumulation “with respect to . . .
reviews . . . initiated on the same day.” 19 U.S.C.
§1675a(a)(7). Eveready states that because a review of Japan
was not requested on the same day, a changed circumstances
review would only review EMD from Greece. Pl.’s Resp. Br. at
7. Eveready mistakenly characterizes a request for a review
as the initiation of a review to support this contention. The
Commission has thirty days after the close of the period for
public comments following the request for a review to
determine whether sufficient changed circumstances exist to
Court No. 98-09-02816 Page 14
warrant a review, after which time it may institute a review.
See 19 C.F.R. § 207.45(c). Determining that sufficient
changed circumstances did not exist, the Commission dismissed
Eveready’s request before instituting a review. If the court
remanded to the Commission to initiate a changed circumstances
review, this would be the first time such a review was
initiated and, at that time, the Commission could decide to
self-initiate a review of EMD from Japan on the same day.
The Commission correctly maintains that if it is required
to reconsider its decision not to initiate a changed
circumstances review with respect to EMD from Greece, it also
has the authority to reconsider whether to self-initiate a
review with respect to EMD from Japan at the same time.
See Def.’s Reply Br. at 5. In such a case, the statute
specifically grants the Commission the discretion to cumulate
imports from Greece and Japan. See 19 U.S.C. § 1675a(a)(7).
Therefore, under both a changed circumstances review and a
sunset review the Commission has the authority to cumulatively
assess the volume and effect of imports from all countries.
Eveready’s arguments that cumulation differs under a changed
circumstances review from cumulation under a sunset review
therefore fail.
Court No. 98-09-02816 Page 15
B. Magnitude of the Margin
Eveready also argues that a fundamental difference
between a sunset review and a changed circumstances review is
the appropriate margin to apply in the ITC’s consideration of
the magnitude of the dumping margin. Eveready argues that in
a sunset review the requisite dumping margin which will be
considered is “normally” the margin from the original
investigation, pursuant to 19 U.S.C. § 1675a(c)(3), whereas in
a changed circumstances review the Commission is required to
consider the most recent margin calculation, including a
margin from an annual administrative review, pursuant to 19
U.S.C. § 1677(35)(C)(iii) (1994). This argument is also
without merit.
As with cumulation, in determining the likelihood of the
continuation or recurrence of injury under sections 1675(b)
and (c), the Commission has discretion whether to consider the
magnitude of the margin of dumping. “In making a
determination under section 1675(b) or (c) . . . the
Commission may consider the magnitude of the margin of dumping
or the magnitude of the net countervailable subsidy.” 19
U.S.C. § 1675a(a)(6) (emphasis added); see also SAA at 887,
1994 U.S.C.C.A.N. at 4211 (“[n]ew section 752(a)(6)
[1675a(a)(6)] permits the Commission to consider the magnitude
Court No. 98-09-02816 Page 16
of the dumping margin or net countervailable subsidy in
determining the likely continuation or recurrence of injury.”)
(emphasis added). While Commerce under 19 U.S.C. §
1675a(c)(3) is to provide the Commission with information on
the likely dumping margin in the event of cessation of
antidumping duty discipline, the Commission is not required to
consider the margin in making its determination as to whether
there is likely to be a continuation or recurrence of injury.
See 19 U.S.C. § 1675a(a)(6). The Commission has exercised
this discretion in recent changed circumstances reviews and
sunset reviews by not relying on the margin information in
determining the likely continuation or recurrence of injury.8
Because of the particular fact pattern at issue here, if
the Commission did choose to rely on the magnitude of the
dumping margin in either the sunset review or a changed
circumstances review it would use the same margin.
8 In these determinations, the Commission simply noted
the applicable dumping margin. In none of these cases did the
Commission rely on or analyze the effect of the noted margins
in determining the likely continuation or recurrence of
material injury. See Titanium Sponge from Japan, Kazakhstan,
Russia, and Ukraine, USITC Pub. 3119, at 13 n.72, Inv. Nos.
751-TA-17-20 (changed circumstances review) (Aug. 1998);
Barbed Wire and Barbless Wire Strand from Argentina, USITC
Pub. 3187, at 9 n.59, Inv. No. 731-TA-208 (sunset review) (May
1999); Elemental Sulfur from Canada, USITC Pub. 3152, at 13
n.35, Inv. No. AA1921-127 (sunset review) (Jan. 1999).
Court No. 98-09-02816 Page 17
Specifically, for a changed circumstances review, 19 U.S.C. §
1677(35)(C)(iii) defines the margin of dumping which may be
used by the Commission as:
the most recent dumping margin or margins determined by
the administering authority under section 1675a(c)(3) of
this title, if any, or under section 1673b(b)
[preliminary determination by Commerce] or 1673d(a)
[final determination by Commerce] of this title.
19 U.S.C. § 1677(35)(C)(iii). For a sunset review, the margin
which may be used is:
the dumping margin or margins determined by the
administering authority under section 1675a(c)(3) of this
title.
19 U.S.C. § 1677(35)(C)(iv). The SAA states that the statute
defines the magnitude of the dumping margin for purposes of
the Commission’s analysis as, “in a changed circumstances
review, the margin(s) most recently determined by Commerce;
and in a five-year review, the margin(s) determined by
Commerce pursuant to its own sunset analysis under section
Court No. 98-09-02816 Page 18
752(c)(3) [19 U.S.C. § 1675a(c)(3)].”9 SAA at 851, 1994
U.S.C.C.A.N. at 4184.
Eveready argues that it is a foregone conclusion that in
conducting a changed circumstances review, the Commission
would have to revoke the order for EMD from Greece. Eveready
bases this argument on the fact that the most recently
calculated margin available for EMD from Greece for respondent
Tosoh Hellas is zero percent, the margin preliminarily
determined in the latest annual administrative review under 19
U.S.C. § 1675(a), although the all others rate in this annual
review was 36.72 percent.10 See EMD from Greece, 64 Fed. Reg.
9 Under 19 U.S.C. § 1675a(c)(3), Commerce “normally” is
to choose the margin that is likely to prevail in the event of
revocation from among the final determination margin, an
annual review margin or a changed circumstances margin. The
SAA and the House Report to the URAA emphasize that Commerce
“normally will select the rate from the investigation, because
that is the only calculated rate that reflects the behavior of
exporters . . . without the discipline of an order . . . in
place.” SAA at 890, 1994 U.S.C.C.A.N. at 4214; H.R. Rep. No.
103-826, pt. 1, at 64 (1994). “In certain instances, a more
recently calculated rate may be more appropriate. For
example, if dumping margins have declined over the life of an
order and imports have remained steady or increased, Commerce
may conclude that exporters are likely to continue dumping at
the lower rates found in a more recent review.” Id.; see
generally Michael O. Moore, Antidumping Reform in the United
States - A Faded Sunset, Journal of World Trade, Aug. 1999, at
1 (discussing legislative history regarding application of
margin in sunset reviews).
10 The same margins were applied in the just issued
(continued...)
Court No. 98-09-02816 Page 19
25,008, 25,010-11 (Dep’t Commerce 1999) (preliminary results
of antidumping duty admin. rev.). Eveready states that in
conducting a sunset review, the Commission would consider the
margin determined in the original investigation, which was
36.72 percent. See EMD from Greece, 54 Fed. Reg. at 15,244
(setting forth margins for Tosoh Hellas and all others in
original LTFV investigation). See also supra note 9.
The statute, however, indicates that in a changed
circumstances review the Commission may consider the sunset
margin if one exists. See 19 U.S.C. § 1677(35)(C)(iii). In
fact, once the sunset margin is calculated it appears that is
the only margin which may be used in the changed circumstances
review, because it would be the most recent margin available
of the ones listed in the statute. The statute is most
naturally read to authorize only the use of the sunset margin
itself or the preliminary or final margin from the original
investigation, whichever is the latest margin. The SAA might
be read as indicating that the statute means the Commission
may consider the most recent margin of any type, including an
10 (...continued)
final results from this annual administrative review. See EMD
from Greece, 64 Fed. Reg. 62,169, 62,175 (Dep’t Commerce
1999).
Court No. 98-09-02816 Page 20
annual review margin if it is the latest margin, but it is
difficult to read the statute that way.
Section 1677(35)(C)(iii) refers to annual review margins
indirectly, that is, if such a margin is chosen by Commerce in
a sunset review under section 1675a(c)(3). Reading section
1677(35)(C)(iii)’s reference to section 1673a(c)(3) to mean
that the Commission may consider any of the margins listed in
section 1675a(c)(3), rather than that margin chosen by
Commerce, raises another issue. Section 1675a(c)(3) states
that Commerce may choose margins determined in final
determinations pursuant to 19 U.S.C. § 1673d, yet section
1677(35)(C)(iii) also specifically includes these section
1673d margins. The only apparent way to avoid this redundancy
is to read the inclusion of section 1675a(c)(3) in section
1677(35)(C)(iii) as referring to the sunset margin chosen by
Commerce, and not the various types of margins which Commerce
may provide to the Commission, as listed within section
1675a(c)(3).
Moreover, if Congress intended that the difference in the
margins which the Commission could consider in simultaneous
sunset and changed circumstances reviews to be a significant
difference between the two types of reviews, which serve the
same purpose, the statute would be drafted with greater
Court No. 98-09-02816 Page 21
precision to reflect this intent. The court, however, need
not decide whether an annual review margin not selected by
Commerce in a sunset review can be used in a changed
circumstances review if it is the latest margin.11 In this
case the sunset review margin will be the most recent margin.
Thus, in the seemingly unlikely event that the Commission were
to employ a margins analysis in the changed circumstances
review here, it would use the sunset margin.12
Conclusion
The court finds that in this case the sunset review of
the antidumping order will provide the same relief as a
changed circumstances review. The purpose of both reviews is
to determine whether revocation of an antidumping order is
11 In any case, this issue was not fully briefed.
Plaintiff should not be permitted to rely on conclusory
arguments to defeat the motion to dismiss.
12 Plaintiff might argue that the Commission, if it
were compelled to proceed with a changed circumstances review,
would be bound to use the latest margin available at the time
that the changed circumstances review should have taken place.
First, plaintiff has not made this argument and it is not
clear the court would require this. Second, plaintiff has not
established that the changed circumstances review would have
been completed prior to the availability of the sunset margin.
Third, the court believes it is more likely that in the
absence of a sunset margin, if it were to use any margin, the
Commission would use the 36.72 percent margin because that is
what the statute seems to require, as it is the final original
margin. (It is also the latest all others rate from the most
recent annual review.)
Court No. 98-09-02816 Page 22
likely to lead to a continuation or recurrence of material
injury, and in making this determination the statute provides
that the Commission will consider the same criteria. If the
court found that ITC should conduct a changed circumstances
review, the court would simply be ordering the ITC to do that
which it has already done by initiating a full sunset review.
Nothing would be gained by the institution of a changed
circumstances review. The Commission’s renewed motion to
dismiss the complaint on grounds of mootness is therefore
granted.
_______________________
Jane A. Restani
JUDGE
Dated: New York, New York
This 23rd day of November, 1999.