Tokyo Kikai Seisakusho, Ltd. v. United States

United States Court of Appeals for the Federal Circuit
2007-1226, -1227, -1254

TOKYO KIKAI SEISAKUSHO, LTD. and TKS (U.S.A.), INC.,

Plaintiffs-Cross Appellants,

and

MITSUBISHI HEAVY INDUSTRIES, LTD.,

Plaintiff,

v.

UNITED STATES,

Defendant-Appellant,

and

GOSS INTERNATIONAL CORPORATION,

Defendant-Appellant.

Lawrence R. Walders, Sidley Austin LLP, of Washington, DC, argued for plaintiffs-
cross appellants. With him on the brief were Neil R. Ellis, and Jennifer Haworth
McCandless. Of counsel on the brief were Peter J. Toren, Kasowitz Benson Torres &
Friedman, of New York, New York; and Hoken S. Seki, Law Offices of Hoken S. Seki, of
Lake Forest, Illinois. Of counsel was Neil Charles Pratt, Sidley Austin LLP, of Washington,
DC.

Maame A.F. Ewusi-Mensah, Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-appellant,
United States. With her on the brief were Michael F. Hertz, Deputy Assistant Attorney
General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of
counsel was Kent G. Huntington, Attorney. Of counsel on the brief were Michele D. Lynch,
Senior Counsel, and Hardeep K. Josan, Attorney International, Office of the Chief Counsel
for Import Administration, United States Department of Commerce, of Washington, DC.

John R. Shane, Wiley Rein LLP, of Washington, DC, argued for defendant-
appellant, Goss International Corporation. With him on the brief were Charles O. Verrill, Jr.
and Eileen P. Bradner.

Appealed from: United States Court of International Trade

Judge Judith M. Barzilay
United States Court of Appeals for the Federal Circuit
2007-1226, -1227, -1254

TOKYO KIKAI SEISAKUSHO, LTD. and TKS (U.S.A.), INC.,

Plaintiffs-Cross Appellants,

and

MITSUBISHI HEAVY INDUSTRIES, LTD.,

Plaintiff,

v.

UNITED STATES,

Defendant-Appellant,

and

GOSS INTERNATIONAL CORPORATION,

Defendant-Appellant.

Appeal from the United States Court of International Trade in case no. 06-00078, Judge
Judith M. Barzilay.
__________________________

DECIDED: June 17, 2008
__________________________

Before LOURIE, LINN, and PROST, Circuit Judges.

LINN, Circuit Judge.

In this antidumping case, we are asked to determine the scope of the

Department of Commerce’s (“Commerce’s”) authority to reopen proceedings tainted by

fraud. Following Commerce’s receipt of information indicating that Tokyo Kikai

Seisakusho, Ltd. and TKS (U.S.A.), Inc. (collectively, “TKS”) had provided false

information during yearly administrative reviews of an existing antidumping duty order to
which they were subject, Commerce initiated a “changed circumstances review.” It

initiated that proceeding to reconsider the administrative reviews themselves, as well as

its revocation of the antidumping duty order, which was based in part on the results of

those administrative reviews. In the final results of the changed circumstances review,

Commerce concluded that TKS had provided false information during one of the

administrative reviews and modified the result of that review accordingly. Because the

result of that review originally led Commerce to revoke-in-part the antidumping duty

order as it applied to TKS, Commerce reinstated that portion of the antidumping duty

order. Finally, Commerce also stated its intention to reopen in a future, separate

proceeding the sunset review that had revoked the antidumping duty order in its

entirety.

The Court of International Trade (“the trial court”) concluded that Commerce

possessed authority to conduct the changed circumstances review, Tokyo Kikai

Seisakusho, Ltd. v. United States, 473 F. Supp. 2d 1349, 1355 (Ct. Int’l Trade 2007)

(“TKS”), but concluded, after determining that the issue was ripe, that Commerce lacked

authority to reopen the sunset review for reconsideration, id. at 1361-62. The United

States and Goss International Corporation (collectively, “Appellants”) appeal the trial

court’s decision, arguing that the issue of whether Commerce has authority to reopen

the sunset review is not ripe, and alternatively, that Commerce possesses such

authority. TKS cross-appeals the trial court’s decision, arguing that Commerce lacks

authority to conduct a changed circumstances review in the circumstances of this case

for the purpose of reconsidering the yearly administrative reviews or the revocation of

the antidumping duty order.

2007-1226, -1227, -1254 2
 We conclude that the trial court correctly determined that Commerce possesses

inherent authority to reconsider the results of the yearly administrative reviews in light of

TKS’s fraud, but that it incorrectly determined that Commerce’s stated intention to

reopen the sunset review made it ripe for judicial review. Thus, we affirm-in-part and

reverse-in-part.

I. BACKGROUND

This case involves the importation of large newspaper printing presses and their

components, which the parties and the trial court refer to as “LNPPs.” Goss

International Corporation (“Goss”), a domestic producer of LNPPs, alleged that TKS and

Mitsubishi Heavy Industries, Ltd. (“MHI”) were engaged in dumping that was causing

material injury to the domestic industry. 1 In 1996, Commerce determined that TKS and

MHI were selling LNPPs imported from Japan at less than fair value. Notice of Final

Determination of Sales at Less Than Fair Value: Large Newspaper Printing Presses and

Components Thereof, Whether Assembled or Unassembled, From Japan, 61 Fed. Reg.

38,139, 38,139 (Dep’t of Commerce July 23, 1996); see also Notice of Antidumping

Duty Order and Amended Final Determination of Sales at Less Than Fair Value: Large

Newspaper Printing Presses and Components Thereof, Whether Assembled or

Unassembled, From Japan, 61 Fed. Reg. 46,621 (Dep’t of Commerce Sept. 4, 1996).

Following a finding by the International Trade Commission that this dumping was

1
We presume familiarity with the general scheme of the antidumping laws. For
further reference, see, for example, Ad Hoc Shrimp Trade Action Committee v. United
States, 515 F.3d 1372 (Fed. Cir. 2008), and FAG Italia S.p.A. v. United States, 291 F.3d
806 (Fed. Cir. 2002).

2007-1226, -1227, -1254 3
causing material injury to the domestic industry, Commerce issued a final antidumping

duty order covering these LNPPs. 61 Fed. Reg. at 46,622.

During three successive one-year periods—1997-1998, 1998-1999, and 1999-

2000—Commerce conducted yearly administrative reviews to determine whether TKS

was continuing to dump LNPPs, and concluded that it was not. Large Newspaper

Printing Presses and Components Thereof, Whether Assembled or Unassembled, From

Japan: Final Results of Antidumping Duty Administrative Review and Revocation in

Part, 67 Fed. Reg. 2,190, 2,191-92 (Dep’t of Commerce Jan. 16, 2002). Section

351.222(b) of 19 C.F.R. provides for revocation of an antidumping duty order based on

certain showings, including evidence of sales at not less than normal value for three

consecutive years. In January 2002, pursuant to section 351.222(b) and based on the

results of the three consecutive administrative reviews showing a zero dumping margin,

Commerce revoked the antidumping duty order with respect to TKS. Id.

In August 2001, during the course of the yearly administrative reviews,

Commerce initiated a “sunset review” of the antidumping duty order as applied to all

parties. Large Newspaper Printing Presses and Components Thereof, Whether

Assembled or Unassembled, from Japan (A-588-837) and Germany (A-428-821):

Notice of Final Results of Five-Year Sunset Reviews and Revocation of Antidumping

Duty Orders, 67 Fed. Reg. 8,522, 8,522 (Dep’t of Commerce Feb. 19, 2002). Goss

initially filed a notice of intent to participate as a domestic party, but later withdrew from

participation. Id. Goss was the sole domestic interested party. Because Goss, as the

sole domestic interested party, withdrew its interest in participating, Commerce

“determined to treat th[e] situation as if no domestic interested party responded to the

2007-1226, -1227, -1254 4
notice of initiation of th[e] sunset reviews.” Id. at 8,523. Consequently, Commerce,

effective September 4, 2001, revoked the antidumping duty order in its entirety, citing

statutory and regulatory provisions requiring revocation of the order if no domestic

interested party participates. Id. (citing § 751(c)(3)(A) of the Tariff Act of 1930 and 19

C.F.R. § 351.218(d)(1)(iii)(B)(3)).

While the foregoing matters were before Commerce, Goss, in May 2000, brought

a civil action against TKS under the Antidumping Act of 1916, 15 U.S.C. § 72, alleging

that TKS had unlawfully dumped LNPPs from Japan. 2 See Goss Int’l Corp. v. Tokyo

Kikai Seisakusho, Ltd., 321 F. Supp. 2d 1039, 1042 (N.D. Iowa 2004). In December

2003, the jury returned a verdict in Goss’s favor, and the district court subsequently

found, in the context of TKS’s motions for new trial and for judgment as a matter of law,

that the evidence at trial supported the jury’s verdict that TKS had “dumped” LNPPs in

the United States. See generally id. In upholding the jury’s verdict, the district court

pointed specifically to evidence presented at trial that TKS had provided a “secret

rebate” to the Dallas Morning News newspaper to prevent Goss from making that sale,

and that “TKS and its counsel engaged in a concerted effort to conceal the secret

rebates.” Id. at 1045. The sale in question was the sole transaction considered during

Commerce’s 1997-1998 administrative review of TKS. Large Newspaper Printing

Presses and Components Thereof, Whether Assembled or Unassembled, from Japan:

Initiation of Changed Circumstances Review, 70 Fed. Reg. 24,514, 24,515-16 (Dep’t of

Commerce May 10, 2005).

2
Congress repealed the statute in 2004.

2007-1226, -1227, -1254 5
 Although it is unclear from the record how, the decision, including the jury’s

verdict and the findings of the district court relating to the evidence, came to the

attention of Commerce, and in May 2005, Commerce self-initiated a changed

circumstances review for the purpose of reconsidering the results of the three yearly

administrative reviews in which it found that TKS had a zero dumping margin. Id. In

September 2005, after giving interested parties an opportunity to submit factual

information, Commerce published its preliminary results of the changed circumstances

review. Large Newspaper Printing Presses and Components Thereof, Whether

Assembled or Unassembled, From Japan: Preliminary Results of Changed

Circumstances Review, 70 Fed. Reg. 54,019 (Dep’t of Commerce Sept. 13, 2005). In

the Preliminary Results, Commerce concluded that “TKS provided false information in

the context of the 1997-1998 administrative review.” Id. at 54,021. This preliminary

conclusion was based on two findings: (1) TKS granted a secret rebate in connection

with the sale to the Dallas Morning News; and (2) TKS, when specifically asked whether

it had granted a rebate in connection with that sale, unequivocally stated that it had not.

Id. In March 2006, Commerce published the final results of the changed circumstances

review, affirming its preliminary determinations. Large Newspaper Printing Presses and

Components Thereof, Whether Assembled or Unassembled, From Japan: Final Results

of Changed Circumstances Review, 71 Fed. Reg. 11,590, 11,591 (Dep’t of Commerce

Mar. 8, 2006). Based on the final results, Commerce: (1) applied an adverse facts

available rate of 59.67 percent to TKS for the 1997-1998 administrative review period;

(2) did not apply an adverse facts available rate for the 1998-1999 and 1999-2000

administrative review periods; and (3) reinstated the antidumping duty order as it

2007-1226, -1227, -1254 6
applied to TKS from September 1, 2000, the effective date of the revocation as to TKS,

though September 3, 2001, the day before the effective date of the sunset revocation.

Id. Commerce also provided advance notification of its intent to reopen the 2002 sunset

review in a separate proceeding. Id. at 11,591-92.

TKS and Goss challenged the final results in the Court of International Trade. 3

Specifically, TKS challenged: (1) Commerce’s authority to initiate and conduct the

changed circumstances review; (2) Commerce’s determination to reinstate the

antidumping duty order as to TKS for the period from September 1, 2000 through

September 3, 2001; and (3) Commerce’s determination to reopen for reconsideration

the sunset review that resulted in the complete revocation of the antidumping duty

order. TKS, 473 F. Supp. 2d at 1351. Goss challenged Commerce’s determination not

to apply an adverse facts available rate to TKS for the 1998-1999 and 1999-2000

administrative reviews. Id.

As relevant to this appeal, the trial court sustained Commerce’s authority to

conduct the changed circumstances review. Id. at 1355 (“Under such circumstances,

Commerce has the inherent authority to self-initiate a review of its prior determinations

to purge them of fraudulent data.”); id. (“Given the severe fraud perpetrated by TKS

during the 1997-1998 administrative review, . . . Commerce acted lawfully when it

initiated and conducted reviews of those determinations.”). The trial court also affirmed

Commerce’s determinations to apply an adverse facts available rate to TKS for the

1997-1998 administrative review, cf. id. at 1355-56, to not apply one for the 1998-1999

3
MHI also challenged certain aspects of the final results. Because MHI is not a
party to this appeal, however, we omit any discussion of its challenge.

2007-1226, -1227, -1254 7
and 1999-2000 reviews, id. at 1364, and to reinstate the antidumping duty order as

applied to TKS, id. at 1357. Finally, the trial court concluded that the issue of whether

Commerce had authority to reopen the sunset review proceeding was ripe, id. at 1360,

and that Commerce lacked authority to reopen the sunset review, id. at 1361-62.

Appellants timely appealed. They contend that whether Commerce has authority

to reopen the sunset review is not ripe for judicial review. Alternatively, they argue that

if the issue is ripe, Commerce possesses authority to reopen the sunset review in order

to cleanse the proceedings of fraud. TKS counters that the issue is ripe, but contends

that Commerce lacks authority to reopen the sunset review. TKS also cross-appeals

the trial court’s decision. It contends that Commerce lacks authority to conduct a

changed circumstances review for the purpose of reconsidering the results of the

administrative reviews or the revocation of the antidumping duty order. Appellants

counter that Commerce possesses such authority in order to cleanse its proceedings of

fraud.

We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

II. DISCUSSION

A. Standard of Review

We review the Court of International Trade’s decisions regarding Commerce’s

antidumping determinations de novo, applying the same standard of review to

Commerce’s determinations as did that court. Carpenter Tech. Corp. v. United States,

510 F.3d 1370, 1372 (Fed. Cir. 2007) (citations omitted). Thus, Commerce’s

antidumping determinations must be sustained unless they are “unsupported by

substantial evidence on the record, or otherwise not in accordance with law.” Id.

2007-1226, -1227, -1254 8
(quoting 19 U.S.C. § 1516a(b)(1)(B)(i)). The question of Commerce’s inherent authority

to reconsider its decisions is a question of law, over which we exercise de novo review.

Cf. Macktal v. Chao, 286 F.3d 822, 825 (5th Cir. 2002).

B. Analysis

1. Commerce’s Inherent Authority

The trial court found that “Commerce acted lawfully when it initiated and

conducted reviews of [the yearly administrative reviews].” TKS, 473 F. Supp. 2d at

1355. It rationalized that, “[u]nder . . . circumstances [of fraud], Commerce has the

inherent authority to self-initiate a review of its prior determinations to purge them of

fraudulent data.” 4 Id. TKS argues, on cross-appeal, that the trial court erred in

determining that Commerce possessed authority to initiate and conduct the changed

circumstances review. It contends that “Commerce is limited to the exercise of powers

that have been expressly delegated to it by Congress, and [] Commerce cannot

exercise whatever inherent authority it may have in a manner that is contrary to the

statute.” TKS Br. at 44 (internal citation omitted). Appellants counter that the trial court

correctly concluded that Commerce possesses inherent authority to cleanse its

proceedings from the taint of fraud.

We begin with the recognition that administrative agencies are generally limited

to the exercise of powers delegated them by Congress. Civil Aeronautics Bd. v. Delta

Air Lines, Inc., 367 U.S. 316, 322 (1961) (“[T]he determinative question is not what the

Board thinks it can do but what Congress has said it can do.”); FAG Italia S.p.A. v.

4
Because the trial court concluded that Commerce’s authority to reconsider was
inherent, it did not reach the question whether Commerce possessed statutory authority
to do so. TKS, 473 F. Supp. 2d at 1356 n.7.

2007-1226, -1227, -1254 9
United States, 291 F.3d 806, 816 (Fed. Cir. 2002) (“[T]he Supreme Court has noted that

‘an agency literally has no power to act . . . unless and until Congress confers power

upon it.’” (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986))). Thus, as

we concluded in FAG Italia, for example, Commerce may not conduct a duty absorption

inquiry whenever it chooses, because the statute specifically provides for those inquiries

only during the second or fourth year after the publication of an antidumping duty order.

291 F.3d at 814 (quoting 19 U.S.C. § 1675(a)(4)). The rationale for such a rule is

straightforward: “The fact that Commerce is empowered to take action in certain limited

situations does not mean that Commerce enjoys such power in other instances.” Id. at

817.

TKS relies heavily on this principle, arguing primarily that because the statute

authorizing reviews of changed circumstances sets forth only three situations in which

such reviews are appropriate, none of which encompasses the situation here,

Commerce acted contrary to the statute when it initiated a changed circumstances

review of TKS’s fraudulent conduct. Section 1675(b)(1) of 19 U.S.C. provides for

“[r]eviews based on changed circumstances” in the following situations:

(A) a final affirmative determination that resulted in an antidumping duty
order under this subtitle or a finding under the Antidumping Act, 1921, or
in a countervailing duty order under this subtitle or section 1303 of this
title, (B) a suspension agreement accepted under section 1671c or 1673c
of this title, or (C) a final affirmative determination resulting from an
investigation continued pursuant to section 1671c(g) or 1673c(g) of this
title.

While TKS is correct, and the parties do not dispute, that § 1675(b)(1) does not

expressly provide for a changed circumstances review of the type conducted here, we

think it is misleading to focus narrowly on the statutory definition of “changed

2007-1226, -1227, -1254 10
circumstances” to describe Commerce’s conduct or interest in this proceeding. 5 As its

name suggests, § 1675(b)(1) is intended to facilitate the review of certain

determinations when the circumstances have changed sufficiently from the time that the

determination was originally made such that it may no longer be appropriate. That is

different from the situation at issue here—i.e., when the circumstances that led to the

determination have “changed” only because the true circumstances, previously

concealed by fraud, have come to light. Thus, Commerce’s focus was not on “changed

circumstances” in the sense of § 1675(b)(1). Instead, Commerce’s reconsideration was

just that—a reopening and reconsideration of its previously-conducted yearly

administrative reviews based on newly revealed information of TKS’s fraudulent

conduct, which raised questions about the integrity of the original proceedings.

This Commerce had a right to do—apart from the statutory authority of

§ 1675(b)(1). The prohibition against doing something not authorized by statute is

altogether different from the power to reconsider something that is authorized by

statute. The power to reconsider is inherent in the power to decide. See Trujillo v. Gen.

Elec. Co., 621 F.2d 1084, 1086 (10th Cir. 1980) (“[T]he power to decide in the first

instance carries with it the power to reconsider.”). For this reason, the courts have

uniformly concluded that administrative agencies possess inherent authority to

reconsider their decisions, subject to certain limitations, regardless of whether they

possess explicit statutory authority to do so. Macktal, 286 F.3d at 825-26 (“[I]t is

5
While Commerce could have (and perhaps should have) labeled these
proceedings a reconsideration instead of a review of changed circumstances, we
decline to exalt form over substance by delimiting the scope of Commerce’s authority
based on how it decided to label its proceedings.

2007-1226, -1227, -1254 11
generally accepted that in the absence of a specific statutory limitation, an

administrative agency has the inherent authority to reconsider its decisions.”) (collecting

cases); Alberta Gas Chems., Ltd. v. Celanese Corp., 650 F.2d 9, 12 (2d Cir. 1981)

(discussing “the inherent power of any administrative agency to protect the integrity of

its own proceedings”); Bookman v. United States, 453 F.2d 1263, 1265 (Ct. Cl. 1972)

(“[I]t is the general rule that ‘[e]very tribunal, judicial or administrative, has some power

to correct its own errors or otherwise appropriately to modify its judgment, decree, or

order.’” (citation omitted)).

An agency’s power to reconsider is even more fundamental when, as here, it is

exercised to protect the integrity of its own proceedings from fraud. Alberta Gas, 650

F.2d at 12; see also Elkem Metals, Inc. v. United States, 193 F. Supp. 2d 1314, 1321

(Ct. Int’l Trade 2002) (“A finding that the ITC has the authority to reconsider a final

determination is particularly appropriate where after-discovered fraud is alleged.”). As

the Second Circuit observed in Alberta Gas, “It is hard to imagine a clearer case for

exercising this inherent power [to reconsider] than when a fraud has been perpetrated

on the tribunal in its initial proceeding.” 650 F.2d at 13. 6

6
Over 60 years ago, the Supreme Court made the following policy statement
that, albeit in a different context, reinforces our holding today:
[T]ampering with the administration of justice . . . involves far more than an
injury to a single litigant. It is a wrong against the institutions set up to
protect and safeguard the public, institutions in which fraud cannot
complacently be tolerated consistently with the good order of society. . . .
The public welfare demands that the agencies of public justice be not so
impotent that they must always be mute and helpless victims of deception
and fraud.
Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944).

2007-1226, -1227, -1254 12
 An agency’s inherent authority to reconsider its decisions is not without limitation,

however. An agency cannot, for example, exercise its inherent authority in a manner

that is contrary to a statute. Macktal, 286 F.3d at 825; Bookman, 453 F.2d at 1265

(observing agency’s authority to reconsider “absent contrary legislative intent or other

affirmative evidence” indicating lack of such power). Thus, an agency obviously lacks

power to reconsider where a statute forbids the exercise of such power. Similarly, in

situations where a statute does expressly provide for reconsideration of decisions, the

agency is obligated to follow the procedures for reconsideration set forth in the statute.

See, e.g., Civil Aeronautics Bd., 367 U.S. at 329 (“[W]e are not deciding that the Board

is barred from reconsidering its initial decision. All we hold is that, if the Board wishes to

do so, it must proceed in the manner authorized by statute.”). The agency must also

give notice to the parties of its intent to reconsider, and such reconsideration must occur

within a reasonable time. Macktal, 286 F.3d at 826 (citing Bookman, 453 F.2d at 1265).

Finally, an agency may not reconsider in a manner that would be arbitrary, capricious,

or an abuse of discretion. 5 U.S.C. § 706(2)(a); Macktal, 286 F.3d at 826. These

limitations on the exercise of inherent power are uncontroversial and are not at issue in

this case.

Here, no statute prohibited Commerce’s review, nor were there procedures

specified in any applicable statutory provision that Commerce failed to follow. While

Commerce labeled its proceeding as a “changed circumstances review,” its actions, as

discussed supra, are not properly characterized as such. For this reason, the trial court

was not required to decide whether Commerce’s actions were consistent with

§ 1675(b)(1). Instead, the trial court correctly ruled that Commerce, under the

2007-1226, -1227, -1254 13
circumstances presented, acted within its inherent authority to protect the integrity of its

proceedings from fraud. We agree with that ruling and hold that Commerce possesses

inherent authority to protect the integrity of its yearly administrative review decisions,

and to reconsider such decisions on proper notice and within a reasonable time after

learning of information indicating that the decision may have been tainted by fraud. 7 In

this case, Commerce acted within a reasonable time after learning of the fraud, gave

the parties proper notice, and thus, acted lawfully under its inherent authority in

reconsidering the 1997-1998 administrative review. 8

2. Ripeness

The trial court concluded that Commerce’s stated intention to reopen the sunset

review proceeding was ripe for judicial review because, inter alia, it “qualifie[d] as a final

determination by the agency.” TKS, 473 F. Supp. 2d at 1359; see also id. (“[T]he

agency formally made this determination after extensive research and analysis, and

affirmed it in the Final Results.”). Appellants argue that the issue is not ripe for review

because a “stated intention to reopen” is just that, and does not constitute final agency

action. TKS argues that the determination to reopen the sunset review proceeding is a

final determination, and therefore is amenable to judicial review.

7
We need not and thus do not reach in this case under what other
circumstances Commerce, or another administrative agency, may lawfully reconsider a
decision.
8
TKS only challenges Commerce’s authority to conduct the proceeding; it does
not challenge the consequences that flowed from the final results of that proceeding—
i.e., the application of the adverse facts available rate or the reinstatement of the
antidumping duty order from September 1, 2000 through September 3, 2001.

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 The essential purpose of the ripeness doctrine “is to prevent the courts, through

avoidance of premature adjudication, from entangling themselves in abstract

disagreements over administrative policies, and also to protect the agencies from

judicial interference until an administrative decision has been formalized and its effects

felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S.

136, 148-49 (1967). In determining whether an appeal from an administrative

determination is ripe for judicial review, we look to (1) “the fitness of the issue for judicial

decision” and (2) “the hardship to the parties of withholding court consideration.” Id. at

149.

With respect to “the fitness of the issue for judicial decision,” it is clear that non-

final agency action is not ripe for review. See U.S. Ass’n of Imps. of Textiles & Apparel

v. U.S. Dep’t of Commerce, 413 F.3d 1344, 1349-50 (Fed. Cir. 2005) (“USA-ITA”); see

also 5 U.S.C. § 704 (“Agency action made reviewable by statute and final agency action

for which there is no other adequate remedy in a court are subject to judicial review. A

preliminary, procedural, or intermediate agency action or ruling not directly reviewable is

subject to review on the review of the final agency action.”). Thus, the threshold

determination in any ripeness inquiry is whether the challenged agency action is final.

“As a general matter, two conditions must be satisfied for agency action to be ‘final’:

First, the action must mark the ‘consummation’ of the agency's decisionmaking

process—it must not be of a merely tentative or interlocutory nature. And second, the

action must be one by which ‘rights or obligations have been determined,’ or from which

‘legal consequences will flow.’” Bennet v. Spear, 520 U.S. 152, 177-78 (1997) (citations

omitted).

2007-1226, -1227, -1254 15
 TKS argues that the agency’s stated intention to reopen the sunset review is a

final agency determination because it was contained in the “Final Results of Changed

Circumstances Review,” which is itself a final agency action reviewable pursuant to

statute. In the “Final Results of Changed Circumstances Review,” Commerce set forth

the results of its changed circumstances review with respect to the effect of TKS’s fraud

on the yearly administrative reviews and consequent revocation of the antidumping duty

order. In the concluding paragraph, however, entitled “Final Results,” Commerce stated

that “upon the completion of this review, we will reopen for reconsideration the sunset

review that resulted in revocation of this order. . . . This notice serves as advance

notification that we will reopen a sunset review approximately 30 days after publication

of these final results.” 71 Fed. Reg. at 11,591-92. This statement of intent, according to

TKS, is a “final determination [by Commerce] . . . that it has authority to reconsider the

sunset review and that the facts warranted reconsideration.” TKS’s contention is

misplaced. The fact that Commerce’s stated intention to reopen the sunset review was

contained in a section entitled “Final Results” does not make it final agency action. A

memorialized intention to reopen the sunset review neither “mark[s] the consummation .

. . of the decisionmaking process” nor defines rights or obligations with respect to TKS

or causes legal consequences to flow. Bennett, 520 U.S. 177-78.

The only thing that is final, and thus the only thing subject to judicial scrutiny, in

the “Final Results of Changed Circumstances Review” was the result of the changed

circumstances review. While TKS argues that the decision to reopen the sunset review

was final, that is insufficient, by itself, to constitute final agency action. In FTC v.

Standard Oil Co., the Supreme Court determined that the FTC’s issuance of a

2007-1226, -1227, -1254 16
complaint, which alleged reason to believe a violation of the Federal Trade Commission

Act had occurred, was not final agency action because it “[wa]s not a definitive

statement of position. It represent[ed] a threshold determination that further inquiry is

warranted and that a complaint should initiate proceedings.” 449 U.S. 232, 241 (1980);

see also id. at 241-42 (“[T]he averment of reason to believe is a prerequisite to a

definitive agency position on the question whether Socal violated the Act, but itself is a

determination only that adjudicatory proceedings will commence.”); USA-ITA 413 F.3d

at 1349 (action not final when agency agreed to accept petitions, but had not ruled on

them). A stated intention to reopen is just that, and leaves room for Commerce to

change course. Although Commerce stated that it intended to reopen the sunset

proceedings, it could, for any number of reasons, elect not to do so. This is precisely

the reason why courts decline to address issues that are not “ripe”: “to protect the

agencies from judicial interference until an administrative decision has been formalized

and its effects felt in a concrete way by the challenging parties.” Abbott Labs., 387 U.S.

at 148-49.

With regard to the second Abbott Labs. factor, there is no undue “hardship to the

parties of withholding court consideration” in this case. TKS claims that it will face

“unwarranted and unnecessary burdens if it cannot obtain judicial review at this time.” It

argues that because Commerce has no authority to reopen the sunset review, it will be

forced to undergo a futile exercise that will expose it to unnecessary expense, burden,

and commercial uncertainty. Whether or not Commerce has legal authority to reopen

the sunset review, at this juncture TKS faces no “legal or practical effect, except . . . the

burden of responding to the charges made against it.” Standard Oil, 449 U.S. at 242.

2007-1226, -1227, -1254 17
Moreover, as we held in USA-ITA, “any business uncertainty associated with awaiting a

final decision from an agency is . . . insufficient to turn a threshold agency decision into

a final agency action ripe for review.” 413 F.3d at 1350.

Because Commerce’s stated intention to reopen the sunset review proceedings

is not final, and thus not fit for judicial decision, and because withholding court

consideration of the issue presents no undue hardship to the parties, we conclude that it

is not ripe for judicial review.

III. CONCLUSION

For the foregoing reasons, we conclude that the Court of International Trade

correctly determined that Commerce possessed inherent authority to reconsider its

administrative review. However, we conclude that the Court of International Trade erred

in determining that Commerce’s stated intention to reopen the sunset review

proceedings was ripe for judicial review. Accordingly, the decision of the Court of

International Trade is

AFFIRMED-IN-PART and REVERSED-IN-PART.

COSTS

No costs.

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