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 plaintiffscross 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 defendantappellant, 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. 

2007-1226, -1227, -1254 14 
 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 nonfinal 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 
2007-1226, -1227, -1254 18 

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.