## United States Court of Appeals for the Federal Circuit

2006-1386

PARKDALE INTERNATIONAL, Plaintiff-Appellant, and RUSSELL METALS EXPORT, Plaintiff,

v. UNITED STATES, Defendant-Appellee, and UNITED STATES STEEL CORPORATION, Defendant-Appellee. Richard P. Ferrin , Hunton & Williams LLP, of Washington, DC, argued for plaintiff-appellant. With him on the brief was William Silverman

. David S. Silverbrand ,Trial Attorney, Commercial Liti gation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee United States. With him on the brief were David M. Cohen , Director, and Patricia M. McCarthy , Assistant Director. Of counsel on the brief were John D. McInerney , Chief Counsel; Berniece A. Browne , Senior Counsel; and Kemba T. Eneas , Attorney, Office of the Chief Counsel for Import Administration, United States Departm ent of Commerce, of Washington, DC. Jeffrey D. Gerrish , Skadden, Arps, Slate, Meagher & Flom, LLP, of Washington, DC, argued for defendant-appellee Un ited States Steel Corporat ion. With him on the brief were John J. Mangan and Robert E. Lighthizer

. Appealed from: United States Court of International Trade Judge Judith M. Barzilay

### UNITED STATES COURT OF APPEAL S FOR THE FEDERAL CIRCUIT

2006-1386

PARKDALE INTERNATIONAL, Plaintiff-Appellant, and RUSSELL METALS EXPORT, Plaintiff,

v. UNITED STATES, Defendant-Appellee, and UNITED STATES STEEL CORPORATION, Defendant-Appellee.

______________________ DECIDED: February 9, 2007

_______________________ Before MAYER, RADER and GAJARSA, Circuit Judges

. MAYER, Circuit Judge

. Parkdale International (“Parkdale”) appeal s the judgment of the United States Court of International Tr ade denying its motion for su mmary judgment on the agencyrecord. ∗ Parkdale Int’l v. United States , 429 F. Supp. 2d 1324 ( C t. Int’l Trade 2006). Because the Department of Com m erce’s (“Co mmerce”) application of its May 6, 2003, reseller policy to Park dale’s subj ect entries during the Period of Review (“PO R ”), August 1, 2002 to July 31, 2003, does not have an impe rmissibly retroactive effect, we affirm. Background Parkdale is a reseller, importer, and expor t e r of corrosion-resista n t carbon steel products (“CORE”) from Canada to the U n it ed States. Commerce first publis hed an antidumping duty order on CO RE from C anada in 1993. Antidum ping Duty Orders: Certain Corrosion-Resistant Carbon Steel Flat Produ cts from C anada , 58 Fed. Reg. 44,162 (Aug. 19, 1993). Consequently, subject CORE may enter the United States only if accompanied by a cash deposit of the estimated dumping duties. See 19 U.S.C. § 1673e(a)(3). While liability to pay dum ping duties accrues upon entry of subject merchandise, see 19 C.F.R. § 141.1(a), the actual dut y is not formally deter mined until after entry, and not paid until the goods are liq uidated by the Bureau of Customs and Border Protection (“C ustoms”), see, e.g. , Bethlehem Steel Corp. v. United States , 27 F. Supp. 2d 201, 207 (Ct. Int’l Trade 1998) (“Giv en the retrospective nature of Commerce's administrative reviews , an exporter can not expect to predict ex actly its potential antidumping duty liability at the ti me of impo rt into t he United States.”). On August 1, 2003, Commerce provided an opportunity for interested parties to request an administrative review of producers, resellers, and import e rs of subject CORE for the POR betwe en August 1, 2 002 an d Ju ly 31, 200 3

. Antidump i ng or Cou n tervailin g Duty, Order, Finding, or S u spended In vestigation; Opportunity to Reques t

∗ Russell Metals Export was a plaintiff in the proceeding before the Court of International Trade, but did not file a notice of appeal here.

2006-1386 2Administrative Review , 68 Fed. Reg. 45,218 (A ug. 1, 2003). Sever a l parties requested a review, but Parkdale chose not to parti cipate. Commerce issued its preliminary results in September 2004, Ce rtain Corrosion-Res i stant Ca rbon Steel Flat Product s from Canada: Preliminary Results of Antidumping Administrative Review , 69 Fed. Reg. 55,138 (Sept. 13, 2004), which Parkdale cha llenged as an interested party. Commerce rejected Parkdale’s c hallenge, and issued its final results in March 2005. Certain Corrosion- Resistant Carbon St eel Flat Pr oducts from Canada: Final Results of
A n ti dumping A d mi ni strati ve R e vi ew , 70 Fed. Reg. 13,458 (Mar. 21, 2005), as amended 70 Fed. Reg. 22,846 ( M ay 3, 2005) (“Final Results ”). There, Commerce provided that its May 6, 2003, reseller pol icy would apply to unreviewed resellers, like Par k dale, who purchased their CO RE from a reviewed pr oducer who did not know it s goods were destined for the United States. See F i na l Results , 70 Fed. Reg. at 13,459; see also Antidumpin g and Co u n tervailin g Duty Proc e edings: As sessment of Antidum ping Duties , 68 Fed. Reg. 23,954 (May 6, 2003) (“Reseller Policy ”). As a result, Parkdale’s subject goods entered during the POR are set to be liq uidated at the “all-others” rate (i.e., a simple av erage of the calculated company -specific dumping rates), not the producerspecific cash deposit rate that i t paid upon entry of its goods (i.e., CORE producer Stelco, Inc.’s, dumping margin). The all- others rate is cons i derably higher than Parkdale’s producer-specific cas h deposit rate, 18. 71% as compared to 4.24%. Commerce initially pr oposed the Reseller Policy in 1998, for the purpos e of clarifying how it applied t he aut omatic liquidation prov is ions under 19 C.F.R. § 351.212 to resellers exporting subject merchandise to the United States. Antidumping and Countervailing Duty Proceedings : Assessment of Antidumping Duties , 63 Fed. Reg.

2006-1386 355,361 (Oct. 15, 1998). The October 1998, not ice provided that if “the Department determines in the administra tive review that the pr oducer did not know that the merchandise it sold to the reseller was de stined for the United States, the reseller's merchandise will not be liqui dat ed at the assessment rate the Department determines for the producer or automatically at the rate required as a deposit at the time of entry. In that situation, the ent ries of merchandis e fr om the res e ller during t he period of revie w will be liquidated at the all-others rate if there was no company-specific review of the reseller for that review period.” Id. at 55,362. Commerce subsequently requested addit iona l comments on its proposal. Antidumpin g and Co u n tervailin g Duty Proc e edings: As sessment of Antidum ping Duties , 67 Fed. Reg. 13,361 (Mar. 25, 2002). Parkdale responded in April 2002, s t ating that, “until issuance of that March 25, 2002 notic e, Canadian resellers had every reason to believe, at the time of importation, that t heir imports were subject to the existing practice, which has been either to apply aut omatic liquidation to all reseller entries, or to liquidate at the relev ant manufacturers’ rate, not to apply the ‘all others’ rate as a possible alternative rate depending on what t he manufacturer did or did not know.” Parkdale’s comments notwithstanding, Co mmerce adopted the Reseller Policy on May 6, 2003, substantially as proposed in Oct ober 1998. In other words, prior to Commerce’s adoption of the Reseller Policy , if Par k dale did not participate in an administrative review, its entries were liquidat ed at Stelc o , Inc.’s (“Stelco”), cash depos it rate, regardless of whether an administrat ive review had been requested for Stelco. With the adoption of the new policy, howev er, bec ause Stelco r equested an

2006-1386 4administrative review for the 2002-03 POR, Pa rkdale’s decision not to undergo a review guaranteed that it would be subject to the higher all-others rate. While Co mmerce initially ch aracterized the Reseller Po lic y as a mere “clarification,” it acknowledges that the po licy giv e s rise to a “re latively signific ant change” for affected parties. Parkdale , 429 F. Supp. 2d at 1333 (“Commerce concede s that . . . there was a relative ly significant change in [its] treatment of resellers.”). Howev e r, the policy’s impact is circumscribed beca u s e it only applies “to entries for which the anniversar y month for requesting an administrative review is May 2003 or later.” Reseller P o lic y , 68 Fed. Reg. at 23,956. Ac co rdingly, any reseller potentially affected by the policy had notic e of its impac t prior to having t o make the decis ion whether to participate in a subsequent administrative re view, and thereby have its goods liquidated at a rate calculat ed spec ifically for it; or not to participate, and have its entries liquidated at the all-others rate. After Commerce issued its Final Res u lts , Parkdale filed suit in the Court of International Trade, arguing that app lication of the R e seller Policy to its subject goods entered prior to May 6, 2003, had an impermissi bly retroactive effect. The trial court denied its challenge, and Parkdale appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(5). Discussion “We review the Court of International Trade’s judgm ent, affirmi ng or reversing the final results of an adm inistrative review, de novo . In so doing, we apply anew the same standard used by the c ourt, and will u phold Com m erce’s determination unless it is unsupported by substantial evidence on the re cord, or otherwise not in accordance wit h

2006-1386 5law.” Hynix Semic o n ducto r, Inc. v. United States , 424 F.3d 1363, 1367-68 (Fed. Cir. 2005) (citations and quotation ma rks omitted). “While we essentially step into the shoe s of the Court of International Trade and duplicate its review , . . . we do not altogether ignore its informed opinion.” Roya l T hai Gov’t v. United States , 436 F.3d 1330, 13 35 (Fed. Cir. 2006) (citations omitted). Parkdale c ontends that Commerce’s applic ation of its reseller policy to s u bject merchandise entered prior to its promul gation on May 6, 2003, is im permissibly retroactive. We disagree. It is true that “[r]e t ro activity is not fa vored in the law.” Bowen v. Georgetown Univ. Hosp

. , 488 U.S. 204, 208 (1988). However, a statute, rul e , or policy “does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute's enactment, or upsets expe ctations based in pr ior law. Rather, the court must ask whether the new provision attac hes new legal cons equences to events completed before its enactment.” Landgraf v. USI Film Prods. , 511 U.S. 244, 269-70 (1994) (citations omi tted) (emphasis added). To det ermine whether the application of a law or policy is impermissibl y retroactive, we examine the “nature and extent of the change of t he law,” “the degree of connection between the operation of the new rule and a relev ant past event,” and “c onsider ations of f a ir notice, reasonable reliance, and settled expectations.” Pr incess Cruises, Inc. v. United States , 397 F.3d 1358, 1364 (Fed. Cir. 2005) (quoting Landgraf , 511 U.S. at 270). The gover nment concedes that Commerce’s Res e ller Policy constitutes a relatively s i gnificant c hange. Prior to its adoption, Commerce liquidated s u bject goods for resellers like Park dale at the relevant pr oducer-specific cash deposit rate, unless the

2006-1386 6reseller or another int e rested pa rty requested an administrative review of the reseller’s entries. Under the Reseller Policy , however, because Stelco participated in the administrative review f o r the 2002-03 POR, Park dale lost its ability to have its entries liquidated at Stelco’s cash deposit rate. While this factor points in Parkdale’s favor, the remaining two Landgraf factors align heav ily agains t it, and preclude our finding impermissible retroactivity. A retroactive rule “must also have a s i gnificant retroactive connection with past events.” Princess Cr uises , 397 F.3d at 1366. Parkdale argues that bec ause resellers do not have the option of undoing impor tations entered before May 6, 2003, the connection between those entries of goods and t he new rule is signific a nt. We do not agree. Although the new polic y affects Parkdale’s ultimate liability, the degree of connection between the policy and Parkdale’ s subject entries is minimal. Parkdale’s decisions relating to t he volume of CORE it imports in a given year are certainly dependant, at least in part, on what dumping rate it anticipates will ultimately be assessed agains t it. However, resellers import goods with the knowledge that changes may occur to duty margins unt il liquidation of subject entries. See 19 U.S.C. § 1500; Dart Exp. Corp. v. United States , 43 C.C.P.A. 64, 76 (1956); see also Bethleh e m Steel , 27 F. Supp. 2d at 207; D & L Supply Co. v. United States , 841 F

. Supp. 1312, 1315 (Ct

. Int’l Trade 1993) (“The unc ertainty of knowing the final amount of duties due at the time of entry is simply an inherent pa rt of importing merchandise int o the United States.”). Indeed, “[n]o vested right to a partic ular classification or rate of duty or preference is acquired at the time of importation. ” N. Am. Foreign Trading Corp. v. United States , 783 F.2d 1031, 1032 (Fed. Cir. 1986) (citing Norwegian

2006-1386 7Nitrogen Prods. Co. v. United States , 288 U.S. 294, 318, (1932)). This stem s from the fact that “th e United St ates uses a ‘retrospective’ asse ssment system under which final liab i lity for antidumpin g and cou n tervailin g duties is d e termined after merchandis e is imported.” 19 C.F.R. § 351.212( a). While importers entering merchandis e s ubject to an antidumping duty order are required to make a cash deposit of estimated antidumping duties, this rate is not final wher e an administr ative review is initiat ed. Ac cordingly, in cases inv o lvin g imp o rters’ challen ges to the application of new laws based on retroactivity, we have looked at liquidation as the paramount relevant “past event.” See,
e.g. , Travenol Labs., Inc. v. United States , 118 F.3d 749, 753 (Fed. Cir. 1997) (holdin g that liquidation of entries “is the triggerin g or operative event” for deciding whether application of a statute or regulation is impermissibly retroactive); see also Syva Co. v. United States , 681 F. Supp. 885, 890 (Ct. Int’l Tr ade 1988) (stating that “the statute merely prescribes the time for payment of duties onc e the entr ies are liquidated, and since liquidation, the operative event triggering the time for assessment of interest, occurred after the statute was enacted, there is no retroacti ve application which would deprive plaintiff of any vest ed substantive right”). Viewing liquidation, or commencement of the administrative review, as the proper “triggering event,” as opposed to entry of subject goods, is partic u larly appr opriate her e because but for Stel co’s participation in t he challenged administrative review, the Reseller P o licy would not have precluded Parkdale fr om having its goods liquidated at Stelco’s duty margin. Accordingly, becaus e the significance of the Reseller Policy to entries pre-dating it is minimal, and the primary effect of the policy is prospective, i.e., it applies to liquidations post-dati ng its adoption, we conclude that its effect cannot

2006-1386 8properly be considered impermissibly retroactive . To the extent that weighing the first two Landgraf factors nonetheles s permits of uncertainty in this holding, consideration s of fair notice, reasonable reliance, and settled expectations remove any doub t. As discuss ed above, an importer’s duty is not fixed until liquidat ion. Therefore, despite the fact that P a rkdale enj oyed liquida tion at Stelco’s dumping margin for several years, it, nevertheless , could not have an objectively reasonab le s e ttled expectation that it would not, at some point, be subjected to a different margin. This is especially s o because an overriding purpose of Commerce’s adm inistration of antidumping laws is to calculate dumping margins as ac curately as po ssible, and this requires altering dumping rates to reflect changes in, inter alia , polic y or commercial realities. See, e.g. , Rhone Poulenc, Inc. v. United States , 899 F.2d 1185, 1191 (Fed. Cir. 1990). Moreover, sinc e 1998, Park dale was on notice that Comme rce might adopt t he Reseller Policy . In view of the additional notice Commerce prov ided in 2002 and the comments Parkdale submitted in response, it undoubtedly had fair notice of the change. Finally, after its comments in Apr il 2002, because Parkdale c oul d reas onably anticipat e that adoption of the Reseller Policy was imminent, it ceased to hav e a credible claim to reasonab le reliance on the assumption that Commerce would nevertheless continue to apply its previous reseller polic y in future administrative reviews. Conclusion Accordingly, the judgment of the United States Court of International Trade is affirmed.

AFFIRMED

2006-1386 9