Slip Op. 04-154 UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: GREGORY W. CARMAN

COSCO HOME AND OFFICE PRODUC TS, and FEILI FURNITURE DEVELOPMENT LIMITED, FEILI GROUP (FUJIAN) C O., LTD., NEW- TEC INTEGR ATION (XIAMEN) CO., LTD., Plaintiffs,

v. UNITED STATES OF AMERICA, Defendant, and MECO CORPORATION, Defendant- Intervenor. Consolidated Court No. 03-00928

[Plaintiffs ’ Motions f

or Judgme

nt upon the

Agenc y Re cord ar

e denied . Plaintiff

s’ Motion to Supplement the Administrative Record is denied. Plaintiffs’ Amended Consent Motion for Oral Argume nt is denie d. This Cour

t holds the

Department of Commerce’ s Certain Folding Metal Tables and

Chairs from the Peop le’s Rep ublic of Chi na: Notice

of Partial R escission

of First Antidumpi

ng Duty Ad

ministrativ

e Revie w is supported by substantial evidence on the record or otherwise in accordance with law. This case is dismissed.] Collier Shannon Scott, P.L.L.C. ( Laurence J. Lasoff , Mary T. Sta ley, Gina

N. Dennis ), Washingt on, D.C., f

or Plaintif

f, Cosco H ome and O ffice Pr oducts

. White & Case LLP ( William J. Clinton , Adams C. Lee , Jonathan Seiger), Washington, D.C., for Plaintiffs, Feili Furniture Development Limited, Feili Group (Fujian) Co., Ltd., and New Tec Inte gration (Xiamen) Co., L td.Consol. Ct. No. 03-00928 Page 2

Peter D. Keisler , Assistan t Attorne y G eneral ; David M. Cohen , Director, Commercial Litig ation Br

anch, Civil Division, United Sta tes Depa rtment of Justice; Jeanne M. Davidson , Deputy Direc

tor, Commercial Litigation Bra nch, Civil Division, United States Department of Justice; Michael D. Panzera, Of Counsel, Commercial Litigation Br anch, Civil Division, United States De partmen t of Justice ; Paul Kovac , Attorne y, C ommercia

l Litig ation Br

anch, Civil Division, U

nited State s Depar

tment of Just

ice; Jonathan J. Engler , Of Co un se l, Se ni or At to rn ey, Office of Chief Counsel for I mport Administration, United States Department of Commerce, for Defend ant. Akin Gump Strauss Hauer &Feld ( Warren E. Connelly, Anne K. Cusick ), Washington, D.C., for Defendant-I

ntervenor, Meco Corporation.

Dated: December 7, 2004

O PINI ON C ARMAN , Judge: In this consolidated action, Plaintiffs challeng e the United States Department of Commerce’ s (“Comme rce”)decision

to rescin d its admini strative

review a s to Feili Furniture Development L imited, Feili Group (Fujian) Co., Ltd., and Ne w-Tec Integ

ration (Xiamen) Co., Ltd. (collectively “Feili and New-Tec”) in Certain Folding Metal Tables and Chairs from the People’s Republic of China: Notice of Partial Rescission of First Antidumping Duty Administrative Review , 68 Fed. Reg. 66,397 (Nov. 26, 2003) (“ Partial Rescission of Review ”). The

issue bef ore this Co

urt is whe ther Plain tiffs Fe ili and Ne

w-Tec t imely filed the ir request for review. Plain

tiffs file d Motions f

or Judgme

nt on the Agency

Record, a Motion to Supplement the Administrative Record (“Feili/New-Tec Suppl. Mot.”), and a n Amended Consent Motion for Oral Argument. This Court denies Plaintiffs’ motions and holds that Commerce ’s Partial Re

scission o f Review is supported by substantial evidence on the record or otherwise in accordance with law.Consol. Ct. No. 03-00928 Page 3 S TAND ARD O F R EVIEW In a naly zing a challeng e to Commer ce’s fin al deter mination in

an antidu mping dut

y administrative review, the court will uphold Commerce’s determination unless it is unsupported by substantial evidence

on the record or otherwise not in accorda nce with law. 19 U.S.C. § 1516a(b)(1)(B)(i) (2000). Substantial evidenc e “is something less than the weight of the evidence, and the possibility of dr awing two inconsistent conclusions from the evidence does not prevent an administrative agency ’s finding from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n , 383 U.S. 607, 620 (1966) (citations omitted). Moreover, “the court may

not substitute its judgment for that of the [agency ] when the choice is ‘between two fairly conf

licting views, even though the court would justifiably have made a different choice had the ma

tter bee n before it de novo .’” Am. Spring Wire Corp. v. United States , 8 CIT 20, 22, 590 F. Supp. 1273, 1276 (1984) ( quoting Universal Camera Corp. v. NLRB , 340 U.S. 474, 487- 88 (1951)). This Court w

ill defer to the ag ency

interpre tation of a

statute it administe

rs so long as it is reasonable. Fujitsu Gen. Ltd. v. United States , 88 F.3d 1034, 1038 (Fed. Cir. 1996) ( quoting Koyo Seiko Co. Ltd. v. United States , 36 F.3d 1565, 1573 (Fed. Cir. 1994)). Furthermore , “[s]tatutory interpretations articulated by Commerce during its antidumping proceeding s are entitled to judicial deference under Chevron .” Pesquera Mares Australes Ltda. v. United States , 266 F.3d 1372, 1382 (Fed. Cir. 2001) ( citing Che vron U.S. A. Inc. v

. Natural Re

s. Def. Cou ncil, Inc. , 467 U.S. 837 (1984)). B ACKGROUND On June 27, 2002, Commerce issued Antidumping Duty Order: Folding Metal Tables andConsol. Ct. No. 03-00928 Page 4

Chairs from the People’s Republic of China , 67 Fed. Reg. 43,277 (June 27, 2002). On June 2, 2003, Commerce published Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review , 68 Fed. Reg. 32,727 (June 2, 2003) (“ Notice of O

pportunity

”). In response to that notice, D efendant-Inter venor Meco Corporation (“Defendant-I

ntervenor” or “Meco”) in this case, f iled a timely request for

review. (Letter

from Meco to Commerce of 6/30/03.) Defendant-I ntervenor’s petition included Plaintiffs Feili and New-Tec. (

Id. ) On July 29, 2003, Commerce published Initiation of Antidumping and Countervailing Duty Administrative Reviews, Requests for Revocation in Part and Deferral of Administra tive Reviews , 68 Fed. Reg. 44,524 (July 29, 2003) (“ Notice of Initiation ”). On October 21, 2003, when Defendant-I ntervenor contacted Feili and New- Tec regarding their review request, Feili and New-T ec apparently realized that “a copy

of [their] official stamped r equest f or revie w was not i

n [Commerc e’s] Centr

al Recor ds Unit” in

compliance with 19 C.F.R. § 351.103(b). (Letter fr om White & Case to Commerce of 10/31/03, at 2.) On October 27, 2003, Defendant-I ntervenor timely re quested that Commerce partially rescind the review f or produc ts manufa ctured or exporte d by

Feili an d New-T ec. (L etter fr

om Akin Gum

p Strauss Haeur & Feld to Commerce of 10/27/03.) On Oc tober 30, 2003, after receiving Defendant-Inte

rvenor’s request for partial rescission, Commercesent a letter to Feili and NewTec asking that they

produce a copy

of an official stamped request for review . (Letter from Commerce to White & Case of 10/30/03.) In re sponse to Commerce’s letter, Feili and New-Tec admitted that they had “not y et found a copy

of the official stamped request for review” and had “not yet found evide

nce that the request had been appropria tely served on a

ll interested parties.” (Letter from White & Case to Commerc e of 10/31/03, at 2.)Consol. Ct. No. 03-00928 Page 5

On Novemb er 3, 200 3, Cosco H ome and O ffice Pr oducts (“ Cosco”) , an inter ested pa rty in the underlying

proceeding and plaintiff in this case, reque sted that Commerce continue the review as to Feili and New-Tec. ( Letter from Collier Shannon Scott to Commerce of 11/3/03.) Commerce declined Cosco’s request because F eili and New-Tec’s failed to properly file. On November 26, 2003, Commerce announced its decision to rescind review as to Feili and NewTec by publ ishi ng Partial Rescission of Review . Cosco filed a separate appeal from F eili and New-Tec. This Court granted a c onsent motion to consolidate these appeals. It is undisputed that an of ficial r equest f or revie w by Feili an d New-T ec is not p art of the administr

ative re cord in this case. ( See Feili/New-Tec Suppl. Mot. at 2; Def.’s Mem. in Opp’n to Mot. for J. upon the Agency R. and Mot. to Supplement the Admin. R. (“Def.’s Opp’n”) at 10.) P ARTIES ’ C ONTENTI ONS A. Plaintiffs’ Contenti ons Plaintiff Cosco states that Feili and New-Tec intended to file a re quest for an administrative review, although there was appa rently some defe ct with the official filing of that request. (Pl.’s Br. in Supp. of Pl.’s Rule 56.2 Mot. for J. upon the Agency R. (“Cosco 56.2 Br.”) at 14.) Pla

intiffs e mphasize that Commer

ce had the courte sy c opy

of [Feili a

nd New-T ec’s] June 30, 2003 review request. (Feili/New-Tec Suppl. Mot. at 7; Cosco 56.2 Br. a t 9.) Plaintiffs contend t hat Commer

ce may continue a revie w where it is awar e of a pa rty ’s intere st, and in t

his case, Co mmerce was awar e of Fe ili and Ne

w-Tec’ s interes t based on the cour tesy copy of their review request. (Feili/New-Tec 56.2 Mem. at 14, 16; Cosco 56.2 Br. at 14, 17-18.) Plaintiffs Feili and New-Tec assert that all information pre sented to or obtained by Commerc e is part of the administrative record and request that this Court grant their Motion to Supplement theConsol. Ct. No. 03-00928 Page 6

1 Plaintiffs note that the Notice of Initiation containe d nine com pany names: “ Feili Furniture Development Ltd.; F eili Furniture Development Co., Ltd.; Fe ili Group (Fujian) Co., Ltd.; Feili (Fujian) Co., L td.; Dongguan Shichang Metals F actory Co., L td.; Dongguan Shchang Metals Factory

Co.; Maxchief Investments Ltd.; Ne w-Tec Integ

ration Co.,; Ltd.; Wok and Pan Industry , Inc.” (Fe ili/New-Tec 56.2 Mem. at 11-12 ( citing Notice of Initiation , 68 Fed. Reg. at 44,525).) Plaintiffs claim Defendant-I ntervenor’s request for review only contained four of the companie s listed in Commerce’ s Notice of Initiation : “Feili Furniture Development Co., L td and Feili (Fujian) Co., Ltd.; Dong guan Shichang Metals Factory Co., L td.; New-Tec Integ

ration Co. Ltd.” (Feili/New-Te c 56.2 Mem. at 12.) Administra

tive Record with the

courtesy c opy

of the re view req uest. (F eili/New -Tec Sup pl. Mot. at 13.) Plaintiff Cosco points out that the statute requires Commerce to conduct a review “if a request for such a review has bee n received and after publication of notice of such review in the Federal Register.” (Cosco 56.2 B r. at 15-16 (quoting 19 U.S.C. § 1675(a)(1)).) Plaintiff Cosco urges that the courtesy

copy was “

received” by

Commerce and therefore the statute’s filing require ment was met. (Cosc o Reply Br. at 6 .) Plaintif

fs conte nd that Commerce’ s decision to rescind the review is without merit because Commerce used information from Feili and NewTec’s courtesy

copy of the r

eview request. (Feili/New-Tec 56.2 Me m. at 9; Cosco 56.2 Br. at 10.) Plaintiffs urge this Court to note that the Notice of Initiation “specifically identified the companies [that were] identified in the request filed by Feili and New-Tec, not the request filed by Meco.” ( Cosco 56.2 B r. at 1 6 (cit ing Notice of Initiation , 68 Fed. Reg. at 44,525) 1 ; Feili/NewTec 56.2 Mem. at 11-12.) Plaintiffs contend that Defendant violated Feili and New-Te c’s due process rights by failing to notify the pa

rties of the filing defects. (Feili/New- Tec 56.2 Mem. at 24; Cosco 56.2 Br. at 39.) Furthermore, Plaintiff Cosco asserts that because Commerce relied on the courtesy copy and a C ommer ce anal yst faile d to n otify Fei li and New-Te c’s cou nsel o f fili ng defec ts du ring aConsol. Ct. No. 03-00928 Page 7

telephone conversation, Commerce should be estopped from re scinding review as to Feili and New-Te c. (Cosc o 56.2 Br . at 29-31 .) Plaintif fs furthe r asser t that Comme

rce broke with its

past practice of exercising discretion to continue revie ws despite improper filing, citing an appare nt defective filing of another responde nt, Wok and Pan, in the same review. (Feili/New-Tec 56.2 Mem. at 14-15; Cosco Reply Br . at 7.) In addition, Plaintiffs denote that Commerce continued with the review in Certain W elded Car bon Steel Pipes and

Tubes from Thailand: F

inal Resul

ts of Antidumping Duty Administrative Review , 62 Fed. Reg. 53,808 (Oct. 16, 1997) (“ Thai Pipe & Tube ”). (Fe ili/New- Tec Repl y B r. at 10; Co sco 56.2 B r. at 19.) Plaintiff s claim the ir facts parallel those in Thai Pipe & Tube to warrant the same result of review continuanc e. (Feili/NewTec 56.2 Mem. at 20; Cosco 56.2 Br. at 19-20.) Plaintiffs Feili and New-Tec remind this Court that without a review they will be subject to the esti mated ca sh deposit

rates a nd will not have an a

ctual ca lculated assessme nt rate f or their entries. (Feili/New-Tec 56.2 Mem. at 19.) Plaintiff Cosco furthe r notes that Commerce’s decision to rescind the review prevents Feili and Ne w-Tec “from obtaining a ref und of any portion of its duty deposit on the antidumping duty order placed on folding metal tables and chairs from the People’s Republic of China through the administrative re view process.” (Cosco 56.2 Br. at 7.) B. Defendant’ s Content ions Defendant contends that Feili and New-Te c never filed a request for re view. (Def.’s Opp’n at 14.) Defendant points out that Feili and New-Te c “admitted that there was no evidence that they had eve

r officially f

iled a request for review with Commerce.” ( Id. at 15.) Defendant also notes that Feili and New-Tec did not present any evidence to Commerce that they served theConsol. Ct. No. 03-00928 Page 8

interested parties. (

Id. at 14-15.) Defendant states that Defenda nt-Intervenor, the only

party that properly filed a

request for review of these companies, timely withdrew its request in accordance with Commerce’s regulations. ( Id . at 15.) Defendant explains “in the absence of any review request on the record at the end of the expiration period, Commerce properly re scinded the review as to Feili and New-Tec.” ( Id. at 15-16.) Defendant asserts that Commerce is not obligated to give unfiled courtesy copies the same legal effect as doc

uments filed in compliance with the regulations. ( Id. at 16.) Defendant contends that if Commerce were required to ac t upon unfiled and unserved courtesy copies of documents in its review proceedings then parties would neve r know when and if a document was properly filed. (

Id. at 33.) Defendant also states that contrary to Plaintiffs’ assertions, “mere expression of ‘interest’ is insufficient for purposes of requesting review.” (

Id. at 28.) Defendant rejects Plaintiffs’ arg ument that Commerce was obligated to continue the review because Commerce relied on inf ormation in Feili and New-Tec’s courtesy copy of the review request. (

Id. at 22.) Defendant points out that the record demonstrates that Commerce did not rely on the document for purposes of initiating the review. ( Id. ) Defendant refutes Plaintiffs’ claim that Commerce’s decision to rescind the review violated F eili and New-Tec’s due process rights because there is no right to import. (

Id. at 38 ( citi ng Arjay Associates, Inc. v. Bush , 891 F.2d 894, 896 (Fed. Cir. 1989)).) Defend ant arg ues that Commerce’ s decision not to con tinue the review i s consiste

nt with its past practice. (Def.’s Opp’n at 29.) Def endant asserts that Plaintiffs’ reliance on Thai Pipe & Tube is misplaced because that case is clearly distinguishable. (

Id. at 20.) In Thai Pipe & Tube , the petiti oner provided subs tantial e vidence that it had , “in fact, offici ally filed a r eview re questConsol. Ct. No. 03-00928 Page 9

notwithstanding the absence of a date-stamped c opy in the administrative rec ord.” ( Id. at 21.) Defendant notes that “Feili and New-Te c have offered no such evid ence tha t the review requ

est was ever filed” ( id. at 20 (em phasis or iginal) ) or “al leged e

xtenuating

circumst ances to explain failure to timely file a r

eview request” ( id. at 34). In addition, Defendant asse rts that Commerce has no fiduciary responsibility to parties with respect to filings. (

Id. at 36.) Defendant offers that the responsibility to ensure that official documents are properly

and timely filed rests solely with the interested parties. ( Id. ) Defendant states tha t “‘no doc ument will b e conside

red as ha ving be en rece ived by

the Secr etary unless it is submitted to the Import Administration Dockets Center in Room 1870 and is stamped with the date and time of receipt.’” ( Id. at 45 ( quoting

19 C.F.R. § 351.103).) Thus, Defendant contends that the administrative record properly excludes the courtesy c opy and urg es this Court to deny Plaintiffs’ Motion to Supplement Administrative Record. ( Id. at 44.) C. Defendant-Interve nor’s Cont entions Defendant-Inte

rvenor was the only

official petitioner for the initiation of the review and for rescission of the review reg arding Feili and New-Tec . Defendant-Inte rvenor’s contentions are essentially

the same as Defendant’s, have bee n duly considered, a

nd, thus, will not be reiterated in their entirety . Defendant-Inte rvenor does, however, provide information about Wok and Pan’s involvement in the review. Defendant-Inte

rvenor distinguishes Wok and Pan’s filing irregular ity from Feili and Ne

wTec’s non-filing. (Br. of Mec o Corp. in Opp’n to Pls.’ Mot. for J. upon the Agency R. a t 22) Defendant-Inte

rvenor notes that a key

factual distinction between Plaintiffs’ record and Wok and Pan’s record is that “Commerce officially received Wok & Pan’s review reque st on June 16,Consol. Ct. No. 03-00928 Page 10

2 The amended statute states: “At least once during each 12-month period beginning on the anniversary

date of publication of... an antidumping order under this subtitle..., the administering authority, if a request for such a review has be en received and after publication of notice of such review in the Federa l Register, shall– (A) review....” 19 U.S.C. § 1675(a)(1) (2000). 2003, which was well within the June 30, 2003, deadline.” ( Id. ) Defendant-I

ntervenor explains that Wok and Pan nevertheless failed to serve its subsequent questionnaire response s on the interested parties. (

Id. ) Defendant-I

ntervenor states that although Feili and New- Tec also failed to observe the service requirement, this was not the basis for Commerc e’s decision to rescind the review. ( Id. at 22-23.) Defendant-I ntervenor concludes that “[a]ccordingly , Commerce’s initial acceptance of Wok & Pan’s revie w request, despite the lack of service, is irrele vant.” ( Id. at 23.) A NAL YSIS The issue

before this Court is

whether Plaintiff s Feili a nd New-T ec prope

rly

commenc ed an ad

ministrati ve revie w reque st in compli ance wi th Commerc e regu

lations. I t is undisputed that the record reflects no official re quest for review was filed by Feili and New-Tec. This Court h

olds that Commerce’ s decision to resc ind the re view as to

Feili an d New-T ec is supported by substantial evidenc e on the record or otherwise in accor dance with law. The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1581(c) (2000). A. Comm erce R

egulations 1. Commerce

regulations are reasonable and clear Congress amended the statutory provisions regarding administrative reque sts for review by eliminating manda

tory annual re

view and implementing review request require ment. See 19 U.S.C. § 1675(a)(1) (2000) 2 ; cf. , 19 U.S.C. § 1675(a)(1) (1982) (prior statute requiring a nnual reviews without re quest provision). Pl aintiffs note that “the sta tute is othe

rwise sile nt withConsol. Ct. No. 03-00928 Page 11

3 The notice reiterated the reg ulatory filing pr

ocedures to request a review: Six copies of the request should be submitted to the Assistant Secretary

for Import Administration, I nternational Trade Administration, Room 1870, U.S. Department of Commerce, 14 th Street & Constitution Avenue, NW., Washington, DC 20230. The Department also asks parties to serve a copy

of the requests to the Office of Antidumping/Countervailing Enforcement, Attention: respect to precisely

where or when a request must be filed.” ( Cosco 56.2 Br. at 16.) Commerce filled this statutory gap by promulgating regulations to gove rn official procedures reg arding administrative reviews. See 19 C.F.R. §§ 351.103, 351.213, 351.303 (2003). Commerce explains that the rationale underlying these procedures is to create ce rtainty and pre dictability for the parties as to when the document is actually filed. (Def.’s Opp’n at 9 ( quoting Decision Memorandum, A-570-868 (Nov. 20, 2003).) T his Court a

cknowle dges tha

t filing r equirements are important to the efficient administration of agenc ies; otherwise, the “cumulative burden on the agencies would be enormous.” Antidumpi ng Duties: Final Rule , 54 Fed. Reg. 12, 742 (cmt. on § 353.31(e) (March 28, 1989) (to be codified a t 19 C.F.R. at pt. 363)). This Court holds that Commerce’s rationale and interpretation of its reg ulations is reasonable within the Chevron framework and is supported by substantial evidence on the record and otherwise in a ccordance with law. Chevron, 467 U.S. at 837. Reading the plain language of the regulations, this Court finds that Commerce provided sufficient notice of the filing requirements for r eview requests when it published the notice of opportunity to request a re view of the antidumping duty order on folding metal tables and chairs from the People’s Republic of China on June 2, 2003. Notice of Opportunity, 68 Fed. Reg. at 32,728 3 ; see also 19 C.F.R. § 351.303(b)-(c).Consol. Ct. No. 03-00928 Page 12

Sheila Forbes, in room 3065 of the main Commerce Building. Further, in accorda nce with § 351.303(f)(l)(I) of the regulations, a copy

of each request must be served on every pa rty on the Depa

rtment’s service list. Notice of O

pportunity , 68 Fed. Reg. at 32,728; see also 19 C.F.R. § 351.303(b)-(c).

4 “The Sec

retary will resc ind an adm

inistrativ e revie

w under t his section, in whole

or in part, if a party

that requested a review withdraws the re quest within 90 days of the date of publication of notice of initiation of the requested review.” 19 C.F.R. § 351.213(d)( 1).

5 Plaintiffs Feili and New-Tec admit their mistake of not officially filing. ( See Feili/NewTec Repl y B r. at 14 ( “Feili a

nd New-T ec fully

recog nize that r ules for filing f ormat, pr ocedure s, and deadlines must be respected. However, mistake s happen.”).) 2. Comm erce pr operly appl ied its re gulations Upon lea rning that Feili a

nd New-T ec’s re

view req uest was n

ot a part of the pub lic record , Defen

dant-I nterven or subseq uently request ed that Com

merce r escind its review a s to Feili and New-Tec pursuant to 19 C.F.R. § 351.213(d). 4 Commerce then prov

ided opportunity for Feili and New-Tec to provide proof of a proper filing. (L etter from Commerce to White & Case of 10/30/03.) However, Feili and New-Te c admitted there was no evidence that they had officially filed a

review request with Commerce. (L etter from White & Case to Commerce of 10/31/03, at 2.) Moreover, Plaintiffs concede that the recor d reflects that “there is no copy of [Feili and New-Tec’s request for] review in the of ficial files of [Commerce].” 5 (Cosco Reply Br

. at 3.) With Defendant-Interve nor’s timely reque st for review rescission, there was no longe r any review request on the record for F eili and New-Tec. According ly, Commerce dec ided to rescind the review as to Feili and New-Tec pursuant to 19 C.F.R. § 351.213(d)(1). This Court holds that Commerce’s decision to rescind the review as to Fe ili and New-Tec is supported by substantial evidence on the record or otherwise in a ccordance with law.Consol. Ct. No. 03-00928 Page 13

6 For example, the petitioners produced: an affidavit from the Commerc e Dockets Center employee, a

ttesting to the fact that the document had in fact been da te-stamped; proof of service upon all the parties of the review request; and an a ffidavit from the courier service that filed the document with Commerce on a timely da te. See Ferro Union v. United States , 23 CIT 178, 179, 44 F. Supp. 2d 1310, 1313-14 n.5 (1999). Due process is not applicable to the case at bar be cause there is no right to import in trade

cases. See, e.g., Maine v. Taylor , 477 U.S. 131, 149 n.19 ( quoting Robertson v. Californ ia , 328 U.S. 440, 458 (1946) (holding that the commerce clause is not a g uaranty of

the right to import)). Nevertheless, it would seem that if due

process were a pplicabl e, Commer

ce provi ded ample notice to all interested parties by publishing the Notice of O pportunity

as well as the later occasion for Feili and New-Tec to demonstrate that they prope rly reque sted review. 3. Commerce

did not break with past practice Plaintiff s contend that Comme

rce has a past pr actice of contin uing re views de spite improper filings. Althoug

h Plaintiff

s point to pe

titioner Wo k and Pan, its situation is distingu ishable f rom Feil i and New -Tec be cause Wok and Pan f

iled a re view req uest with Commerce but failed to serve parties with their questionnaire re sponses in accordance with 19 C.F.R. § 351.303(f). (Letter f rom Commerce to Wok & Pan of 11/5/04.) In contra st, Feili and New-Tec failed to properly file and serve in accordance with 19 C.F.R. § 351.103 and § 351.303. This Court finds Plaintiffs’ citation of authority to Thai Pipe & Tube, 62 Fed. Reg. at 53,808, inapposite. The Thai Pipe & Tube facts are easily distinguishable. In that matter, although the record was unclear as to whether there was an official filing , the Thai Pipe & Tube petitione rs were able to r econstr uct and pr

ove prop er filing

through affida vits and extrinsic evidence. 6 Thai Pipe & Tube , 62 Fed. Reg. at 53,809. Given the same opportunity to produce proof of officia l filing a nd prope r servic e, Feili

and New -Tec ad

mitted the

y ha d no such e

xtrinsicConsol. Ct. No. 03-00928 Page 14

evidence. (Le

tter from White & Case to Commerce of 10/31/03, at 2.) This Court holds Plaintiffs’ contention that their situation is similar to the Thai Pipe & Tube petitione rs is unsupported by substantial evidenc e on the record or otherwise not in accor dance with law. B. Equity Argu ment s Plaintiffs’ estoppel claims against the government fa il. This Court finds that Commerce’s reliance on the courtesy

copy for the

ministerial purpose of correctly identifying or

confirming names is irrelevant to compliance with filing procedure s. This Court finds that estoppel based on Feili an d New-T ec’s co

unsel’s te lephone c onversa tion with a

Commerce

analy st fails sin

ce it is well-established that a party cannot claim estoppel against the gover nment based upon the actions of an employe e. See Princess Cruise Lines, Inc. v. United States , 201 F.3d 1352, 1360 (Fed. Cir. 2000). This Court holds that Plaintiffs’ estoppel claims are unsupported by substantial evidence on the record or otherwise not in ac cordance with law. This Court also rejects Plaintiffs’ invitation to make an exception to Commerce’s technical requirements and continue the review where Plaintiffs maintain no substantive harm or prejudice occurs. (Feili/New-Te c Reply Br . at 14 n1.) The rec ord shows that DefendantIntervenor complied with all re gulatory requirements for initially r equesting review and subseque ntly withdraw

ing its re view req uest. This

Court finds that gr

anting Pl aintiffs ’ reque st to continue review would prejudice Defenda nt-Intervenor and D efendant, and therefore, Commerce was justified in rescinding review as to Feili and Ne w-Tec. This Court holds that if interested parties were free to depar t from the filing requirements, the cumulative administrative burden on Commerce would be enormous. Furthermore, filing procedures create ce

rtainty and predictability for a

ll parties as to when a document has been properly and timely filed.Consol. Ct. No. 03-00928 Page 15 C ONCLUSI ON Based on the foregoing

analysis, this Court denies Plaintiffs’ Motions for Judgment upon the Age ncy Record, Plaintiff

s’ Motion to

Supplemen

t the Admin

istrative Record, and Plaint

iffs’ Amended Consent Mo tion for O ral Arg ument. Thi s Court hold s Commerc e’s dete rmination to rescind the administrative review as to Feili and New- Tec is supported by substantial e vidence on the record or otherwise in accorda nce with law. This case is dismissed, and judgment shall be

en te re d a cc or di ng ly.

/s/ Gregory W. Carman Gregory W. Carman, Judge Dated: December 7, 2004 New York, New York