SLIP OP. 07-72
UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________ : PARKDALE I

NTERNATIONAL , LTD., : RIVERVI

EW STEEL CO., LTD., a nd : SAMUEL, SON & CO., LTD., : : Plaintiff s, :

: Before: Jane A. Res tani, Chief Judge and : : Court No. 06-00289 RUSSEL METALS EXPORT, : : Plaintiff-Intervenor, :

: v. : : UNI TED STATE S, : : Defendant. : ____________________________________: OPINI ON [Plaintiffs’ and plaintiff-intervenor’s motions for preliminary injunctions denied.] Dated: May 11, 2007
Hun to n & W il li ams , LLP ( Richard P . Ferri nand William Silverman ) for the plaintiff s. Sharret ts, Paley , Carter & Blau velt, PC ( Beatri ce A. B rickell and Peter J. Ba skin ) for the plaintiff-intervenor. Peter D. Keisler , Assistan t Attorne y G eneral ; Jeanne E. Davidson , Direct or; Patricia

M. McCarthy , Assistant Director, Commercial Litiga tion Branch, Civil Division, U.S. Department of Justice ( David S. Silverbrand ); Offic e of the Ch ief Counse l for I

mport Admi

nistration, U.S. Department of Commerce ( Mark B. Lehna rdt ), of cou

nsel, for the defe ndant. Restani, C hief Judg e: This ca se is bef ore the c ourt on pla

intiffs Pa rkdale International, L

td., Riverview Steel Co., Ltd., and Samuel, Son & Co., L td.’s, and plaintiff-Court No. 06-00289 Page 2

1 Liquidation is the “final computation or ascerta inment of duties . . . accruing upon entry” of the goods. Norsk Hydro Can., I nc. v. United States , 472 F.3d 1347, 1351 (Fed. Cir. 2006) (quotation omitted).

2 The reg ulation a t issue re ads in re levant pa rt: (1) If the Secretar

y does not rec eive a timely re quest for an administrative review of an order ( see paragraph (b)(1), (

b)(2), or (b)(3)of § 351.2 13), the Se cretar y, w ithout add

itional not

ice, will instruct the Customs Service to: (i) Assess antidumping duties or countervailing duties, as the case may be, on the subject merchandise described in § 351.213(e) at rates equal to the cash deposit of, or bond for, estimated antidumping duties or countervailing duties required on that merchandise at the time of entry , or withdrawal from warehouse, for consumption; and (ii) To continue to collect the cash deposits previously ordered. (2) If the Secretar

y rece ives a timely reque st for an administrative (continued...) intervenor Russel Metals Export’s (collectively , “plaintiffs”) motions for preliminary injunctions to preve nt the liqui dation of

certain entries o f goods

. 1 Plaintiffs are importers and exporter-resellers of ce rtain corrosion-resistant carbon steel flat products from Canada that are cove red by an a

ntidumping duty order. See Certain Corrosion-Resistant Carbon Steel Flat Prods. & Certain Cut-to-Le ngth Carbon Steel Plate from Canada , 58 Fed. Reg. 44, 162, 44,16 2 (Dep’ t Commerc e Aug. 1 9, 1993) ( antidumpin g duty order). Plaintiffs seek liquidation or reliquidation of entries from a two-y ear period commencing on August 1, 2003, and ending on July 31, 2005. Plaintiffs claim they are entitled to liquidation at their producer ’s deposi t rate under the “ automatic liquidation rule,”

19 C.F.R. § 351.212(c)(1), 2 because the entries at issue were not the subjec t of periodic administrativeCourt No. 06-00289 Page 3

2 (...continued) review of an order

( see paragraph (b)(1), (

b)(2), or (b)(3) of § 351.213) , the Secr

etary will instru

ct the Cust

oms Servic e to assess antidumping duties or countervailing duties, and to continue to collect cash deposits, on the merchandise not covered by the request in accordance with parag raph (c)(1) of this section. 19 C.F.R. § 351.212(c)(1)–(2) (emphasis added).

3 This policy was adopted a fter notice was published in the Federal Register, and comments from interested parties were considere d. See Antidumpin g & Coun tervaili ng Duty Proceedings: Assessment of Antidumping Duties , 63 Fed. Reg. 55,361, 55,362–63 (Dep’t Commerce Oct. 15, 1998) (notice and request for c omment on policy concer ning assessment of antidumpin

g duties ); Antidumping & Countervailing Duty Proceedings: Assessment of Antidumping Duties , 67 Fed. Reg. 13,599, 13,599 (Dep’t Commerce Ma r. 25, 2002) (additional comment period). review proceedings and, ther efore, did not receive specific re seller rates. See Certain Corrosion-Resistant Carbon Steel Flat Prods. from Canada , 71 Fed. Reg. 13,582, 13,583 (Dep’t
Commerce

Mar. 16, 2 006) (fi

nal resu lts of anti dumping d

uty administr

ative re view); Certain Corrosion-Resistant Carbon Steel Flat Prods. from Canada , 72 Fed. Reg. 12,758, 12,758 (Dep’t
Co mm er ce Ma r. 19 , 2 00 7) (f in al re su lt s o f a nt id um pi ng du ty a dm in is tr at iv e r ev ie w) (c ol le ct iv el y,

“ Final Re sults ”). I

n such a c ase, the

y a ssert tha

t the auto matic liqu

idation ru le of 19 C. F.R. § 351.212(c)(1) should apply , despite a policy published by defendant United States (the “Government”), which pr ovides tha

t a perio dic revi ew of en

tries for any entity in the same

chain of sale will result in a combined “all others” rate for a ny unreviewe d reseller. See Antidumping & Countervailing Duty

Proceedings: Assessment of Antidumping Duties , 68 Fed. Reg. 23,954, 23,954 (Dep’t Commerce May 6, 2003) (“ Reseller Policy ”)

. 3 The Gove rnment challeng es jurisdi ction. I t notes tha

t plaintif fs did not p articipa

te in the applicable administrative reviews leading to the Final Re sults , which sta ted, in boi lerplateCourt No. 06-00289 Page 4

4 28 U.S.C. § 1 581 state s in relevant part : (c) The Court of Inter

national Trade shall have exclusive jurisdiction of any civil action commenc ed under section 516A of the Tariff Act of 1930.

. . . . (i) In addition

to the jurisdiction conferred upon the Court of International Trade by subsections (a)–(h) of this section and subject to the exception set forth in su

bsection (j) of thi s section , the Cour t of I nternat ional Tra de shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for – (1) revenue from imports or tonnage; (continued...) language, that pursuant to the Reseller Policy the “all others” rate would apply to unreviewed resellers whose producers were reviewed

. See Certain Hot-Rolled Carbon Steel Flat Prods., Certain Cold-Rolled Carbon Steel Flat Prods., Certain Corrosion-Resistant Carbon Steel Flat Prods. & Certain Cut-to-Leng th Carbon Steel Plate from Canada , 58 Fed. Reg. 37,099, 37,103–04 (Dep’t Commerce July 9, 1993) (f inal determinations of sales at less than fair value) (describing all others rate as a c ombination of the rates of two producers). The Gover nment argues that the fact that the Reseller Policy is mentioned in the Final Re sults dictates the conclusion that plaintiffs’ claims should be construed as a challeng e to the Department of Commerce’s (“Commerce”) determination under 19 U.S.C. § 1675(a). The Government contends that because a § 1675(a) deter mination is among those listed in 19 U.S.C. § 1516a, plaintiffs’ challenge should have been br ought in this Court pursuant to 28 U.S.C. § 1581(c). See 19 U.S.C. § 1516a(a)(2)(B)(iii). According to the Government, because 28 U.S.C. § 1581(c) could have been invoked, and was not a manifestly inadequate means to obtain relief, plaintiffs cannot now invoke residual jurisdiction under § 1581(i). 4Court No. 06-00289 Page 5

4 (...continued) (2) tariffs, duties, fees, or other taxes on the importation of

merchandise for reasons other than the ra ising of revenue; (3) embargoes or other quantitative re strictions on the importation of merchandise for reasons other than the prote ction of the public health or safety ; or (4) admin

istration and enfo rcemen t with res pect to th e matters referred to in paragr

aphs (1)–(3) of this subsection and subsections (a)–(h) of this section.

5 The parties agree that plaintiffs we re not prohibited from filing a case brief be fore the agenc y challenging the p olicy

even with

out partic ipating

in a revi ew of the ir entrie s. The issu e is wh et he r u nd er th es e c on di ti on s t he y must file such a brief to preserve jurisdiction. Plaintiffs respond that application of the Reseller Policy is a deci sion sepa

rate from the a

dministra tive review, des

pite the f act that i t is refle cted in bo ilerplat e in a per iodic review determination under 19 U.S.C. § 1675(a). According to plaintiffs, application of the Reseller Policy

is a decision which relates to the liquidation instructions, and can be challeng ed only under 28 U.S.C. § 1581(i). See Consol. Bearings Co. v. United States , 348 F.3d 997, 1002 (Fed. Ci r. 2003) ( holding t hat a cha llenge to liquidat

ion instruc

tions fall s under § 1 581(i) jurisdiction). In this case, plaintiffs cannot bring suit under § 1581(c) because they did not participate in the review proceeding

. See 28 U.S.C. § 2631(c) (stating that only a party to the “proceeding in connection with which the matter arose” may

bring an action challenging the results of a determination listed in 19 U.S.C. § 1516a). The jurisdictional issue here is whether plaintiffs were required to bring a c hallenge to the genera

lly applicable Reseller Policy in such proceedings, even though they could not have participated as parties with entries to be revie wed without mooting their case. 5 Stated an other wa y, t he court must deter

mine whet

her 28 U. S.C.Court No. 06-00289 Page 6

§ 1581(c) provides a mandatory and adequate avenue to relief that pre cludes suit under the broad residual jurisdiction of § 1581(i). This is a question that has confronted the court on many occasions, but the

increa singly

convolute d analy

sis requir ed to res olve it may

indicate that it is time to consider more deeply the meaning of “manifestly inadequate.” The term “manifestly

inadequate,” as applied in the context of this Court’s jurisdiction, arose out of the concern that 28 U.S.C. § 1581(i) jurisdiction should be avoided when the use of suc

h jurisdiction would c ompletely gut the r equirements of ot

her prov isions in § 1581. See United States v. UniRoyal, I nc. , 69 CCPA 179, 187, 687 F.2d 467, 475 (1982) (Nies, J., c oncurri

ng) (a rticulat ing view that othe r forms of relief m ust be “ma

nifestly inadequa te” bef ore juris diction ma

y be invoked u

nder § 15 81(i)). The conc ern was particu larly acute as the plain language of § 1581(i) seemed to allow a party to file suit without following the mandatory exhaustion steps of protest and pr otest denial in a customs action, the prerequisites for § 1581(a) jurisdiction. See id. at 182–83 , 687 F.2d at 471; see also Am. Air Parcel Forwarding Co. v. United States , 718 F.2d 1546, 1549(Fed. Ci

r. 1983). The princ iple was l ater ap plied to unfair tr ade cas es, wher

e challe nges to f indings o f dumping

and subsid

ization and

duty rate calculations proceed through a ca refully orc

hestrated administrative process before cour t challenges under 28 U.S.C. § 1581(c) are allowed. See, e .g. , Miller & Co. v. United States , 824 F.2d 961, 963–64 (Fed. Cir. 1987). Over the y ears, the manifestly

inadequate standard has been applied numerous times to determine whether § 1581(i) jurisdiction would attach instead of jurisdiction under other provisions of § 1581 . The practical result has been a test that, theCourt No. 06-00289 Page 7

6 In the HMT litigation, the claimants in U.S. Shoe asserted § 1581(i) jurisdiction before the Federal Circuit clarified in Swisher that they could have

invoked an administrative procedure that would have led to a protestable decision. Even if the plaintiffs in U.S. Shoe were not aware of th e p ot en ti al ad mi ni st ra ti ve re me dy, th e a va il ab il it y of ju ri sd ic ti on un de r § 15 81 (i ) h as al wa ys hinged on whether the plaintiffs could have used a method that would result in § 1581(a) jurisdiction, not whether they ac tually used it. See Omni U.S.A., Inc. v. United States , 840 F.2d 912, 915 (Fed. Cir . 1988) (h olding that a leg al remed

y “ is not made

inadequa te simply because appellant failed to invoke it within the time frame it prescribes”). Government asserts, requires that jurisdiction under the other sections be a virtual impossibility. This is not a proper interpretation of the statute or its judicial gloss.

More recently , the harbor maintenance tax (“HMT”) litigation demonstra ted that two avenues of § 1581 jurisdiction may exist simultaneously, at least in theory . The Government argued vigorously

that HMT “payme

nts” must be protested, but the courts ruled that pay ment was not a protestable decision and, accordingly, that § 1581(i) jurisdiction applied. See U.S. Shoe Corp. v. United States , 114 F.3d 1564, 1570 (Fed. Cir. 1997), aff’d , 523 U.S. 360 (1998). In subsequent cases broug ht by other parties, the F ederal Circuit found that the protest of an HMT refund request denial was possible and that § 1581(a) jur isdiction was available. See Swisher Int’l, I

nc. v. United States , 205 F .3d 13 58, 13 69 (Fed . Cir . 2000 ). The se two hold ings create a seeming anomaly which allows a party

to assert § 1581(i) jurisdiction where § 1581(a) could have been exercised instead. 6

It is time to consider what these two case s, and other recent cases, mean for the court-created “manifestly inadequate” limitation upon the seemingly clear broad statutory

grant of jurisdiction in § 1581(i). After reviewing these ca ses, the court concludes that where the core of a dispute is within § 1581(i), i.e., it relates to a general issue of a dministration and enforcement policy

as to the matters listed in § 1581(i)(1)–(3), § 1581(i) should functionCourt No. 06-00289 Page 8

accord ing to its t

erms, unl ess it is clear

that another provision of § 1581 applies. See H.R. Rep. No. 96-1235, at 48 (1980) as repr inted in 1980 U.S.C.C.A.N. 3729, 3760 (“Subsection (i), and in partic ular par agrap h (4), ma kes it cle ar that the court i s not prohi bited from enterta

ining a c ivil action relating to an antidumping or counterva iling duty proce eding so long as the action does not involve a challenge to a determination specified in se ction 516A of the Tariff Act of 1930.”).

Turning to the cir cumstanc es of this c ase, the court concludes t

hat, eve n if plaintiffs had filed a case brief contesting application of the Reseller Policy , Commerce’s determination regarding the issue would not have constituted a 19 U.S.C. § 1675(a) determination which qualifies for jurisdiction under 28 U.S.C. § 1581(c). Section 1581(c) provides for judicial review of specific deter minations listed in 19 U.S.C. § 1516a, including periodic reviews under 19 U.S.C. § 1675(a). See 19 U.S.C. § 1516a(a)(2)(B)(iii). Those review s relate specifically

to periodic reviews of entries covered by an antidumping or countervailing duty order. As indicated, none of plaintiffs’ entries were re viewed. The mere inclusion of boilerplate languag e in the Final Re sults that rep eats Commerce’s standard Reseller Policy does not make application of that policy a § 1516a determination any more

than accepting an HMT pay ment was a Customs decision in U.S. Shoe

. Commerce

declar ed its Reseller Policy

in 2003, and merely state d its intention to apply that policy in standard liquidation instructions in the Final Re sults . A mere statement declaring Commerce’s intention to order Customs to apply a de fault rate is not a § 1516a determination. Cf. SKF USA Inc. v. United States , Slip Op. 07-43, 2007 WL 867308, at *4 (CIT Mar . 23, 2007) (statement in final results that liquidation instructions will be issued within 15 days ofCourt No. 06-00289 Page 9

publication of results is not § 1516a determination); Mukand Int’l L td. v. United States , 452 F. Supp. 2d 1329, 1332 (CIT 2006) (same); see also Cons ol. Bea rings , 348 F .3d a t 1002(“[A ]n action challenging Commerce’s liquidation instructions is not a challeng e to the final results, but a challenge to the ‘administration and enforc ement’ of those final results.”); Shinyei Corp. of Am. v. United States , 355 F.3d 1297, 1304 (Fed. Cir. 2004) (finding that the issuance of “clean up” liquidation instructions was not a decision specified in 19 U.S.C. § 1516a; therefore, jurisdiction was not available under 28 U.S.C. § 1581(c)). These case s make clear that parties are not required to challenge substantive de terminations under § 1581(c), with which they agree, in order to preserve a challeng e to instructions governing the liquidation of goods. I nstead, parties are to file § 1581(i) suits to challenge liquidation instructions, particularly where they

do not reflect Commerce’s underly ing 19 U.S.C. § 1516a determination. Accord Canadian Wheat Bd. v. United States , Slip Op. 07-61, 2007 WL 1219687, at *5–*8 (CIT Apr . 24, 2007) (holding that plain tiffs who prevail ed befor

e a NAF TA bi-na

tional pa nel, rat her than this Court, could nevertheless challeng e the ter ms of the r

esulting notice of revoca tion under

28 U.S.C. § 1581(i) (4)). The gene

ral rule appears to be tha

t liquidati on instruc

tions lead to § 1581(i ) jurisdiction unless they directly implement a 19 U.S.C. § 1516a determination, such as the final results of an administrative review under § 1675. I f they incorr ectly implement a § 1675 determination, relief will be granted pursuant to an Administrative Procedures Act (“APA”) action brought under 28 U.S.C. § 1581(i). See Shinyei , 355 F.3d at 1309.

Here, plaintiffs challenge a g eneral policy that has existed since 2003, which was adopted after a five-y

ear notice and comment period, and which the Gove rnment has defendedCourt No. 06-00289 Page 10

vigorou sly . While it wa s not impossi ble under the law f or Commer

ce to aba ndon the p olicy

in
response to a brie f filed by

plaintiff s during the rele vant admi nistrativ e revie

ws, such a

n outcome would have been extraordinarily unlikely. Further , plaintiffs’ entries were not reviewed pursua nt to 19 U.S.C. § 1675, and plaintiffs could not have had their entries reviewed and a lso preserve their claims, which depended on the entries being unr eviewed. Even assuming, arguendo, that Commerce ’s response to a case brief could have been construed as part of a determination under 19 U.S.C. § 1516a, application of the Reseller Policy was not pa

rt of the a ctual § 16 75 revie

w of entr ies and 28 U.S.C. § 158 1(c) jur isdiction i s at best unclear. Just as it was unclear prior to Swisher that ther e was a protest av enue to jurisdiction in HMT cases and, therefore, § 1581(i) jurisdiction attached, in this ca se it is unclear that there is a § 1581(c) avenue to relief. Plaintiffs ar e not required to pursue such a potential remedy. An unc lear avenue to jurisdiction is not an adequate jurisdictional remedy . At the heart of this case is a claim challenging a general administrative policy setting general liquidation instructi ons, not a 1 9 U.S.C. § 16 75 deter mination up on revie

w of entr ies. The Customs Courts Act of 1980 was intended to eliminate jurisdictional disputes so that mat

ters cle arly

within this C ourt’s su

bject mat ter juris diction c ould be de cided pr omptly and without undue expense. See H.R. Rep. No. 96-1235, at 20 (1980), as repr inted in 1980 U.S.C.C.A.N. 3729, 3731 (stating that the Customs Courts Act was intended to provide a “compre hensive syst

em [that] will

ensure g reater efficie ncy in judicia

l resour ces and u niformity in the judicial decision making process”). Arg uments about whether these cases should be decid ed pur suant to 28 U.S. C. § 1 581(c ) or (i ) do no thin g to ful fill this purpo se. Ta king aCourt No. 06-00289 Page 11

7 Neither International Custom Products, I nc. v. United States , 467 F.3d 1324 (Fed. Cir. 2006), nor Norsk Hydro Cana da , 472 F.3d 1347, dictate a different result. International Custom Productsinvolved a choice between § 1581(a) or ( i) jurisdiction. As indicated, preservation of customs protest procedures is a special concern. Norsk Hydro Cana da involved a choice between § 1581(a) and (c) jurisdiction, and the court found jurisdiction under (c ), while emphasizing the need to determine the essence of the ac tion. Id. at 1355. We

do not know

what the r

esult woul d have been if the latter case was pur sued as an (i) case and the “manife stly inadequate” sta ndard was at issue, as the court was not called upon to make that determination.

8 To avoid refiling the 28 U.S.C. § 1581(i) action, the summons and complaint for a potentia l § 1581(c ) action

should be f

iled tog ether be cause 28 U.S.C. § 263 2(a) spe cifies a concurr ent summon s and comp laint for (i) acti ons. For § 1581(c) actions, 28 U.S.C. §§ 2632(c) and 2637( d) refe

r to the c ourt’s ru

les on timin

g of the summons an

d complai nt, but 19 U .S.C. § 1516a(a)(2) governs and a llows thirty day

s after the publication of the results to file a summons and another thirty

day s for the

complain t. The pra

ctice c omments of

the Rules o f this Cour

t, however, encourage

simultaneous filing of a summons and complaint in a § 1581(c) action. See USCIT R. 3 cmt. 2 (“[C]ounsel are encourag ed to commence any action described in Section 516A(a)(2) or (3) of the Tariff Act of 1930 and 28 U.S.C. § 1581(c) by the concurrent filing of a summons an

d complai nt. This wil l serve to

expedite the prosec

ution of th e action .”). I

n contra st, in protes t denial c ases unde r § 1581(a

), a for mal compla

int may be filed ye ars afte

r the summons, which commences the action, see DaimlerChrysler Corp. v. U nited States , 442 F.3d 1313, 1318

(continued...) broader and statutorily

consistent view of § 1581(i) jurisdiction, as did the courts in Consolidated Bearin gs , 348 F.3d at 1002, Shinyei , 355 F.3d at 1309, and Mukand Int’l, L td. v. United States , No. 2006-1258, 2007 WL 571026, at *3 (Fed. Cir. Fe b. 6, 2007) (non-precedential) (holding that a claim f or reliqu idation of entries f ound not su

bject to a n antidump ing duty

order w as prope

rly brought under § 1581(i)(4)), better ser ves the purpose of the statute. 7 Under this holding, parties who mistakenly assert § 1581(c) jurisdiction will not be preju diced by their er ror. The re is a tw o-year sta

tute of lim

itations un

der 28 U. S.C. § 2636( i) for § 1581(i) actions, while the statute of limitations for § 1581(c) cases is much shorter . 19 U.S.C. § 1516a(a)(2). Thus, the party who mistakenly files under 28 U .S.C. § 1581(c) can amend to assert § 1581(i) jurisdiction. 8Court No. 06-00289 Page 12

8 (...continued) (Fed. Ci r. 2006) ( summons fu

nctions a s the initia

l pleadin g, rather than t

he compla

int). While there can be as much as a thirty -day g ap in § 1581(c) filings, when viewed in the context of the § 1581(a ) permiss ible ga

p, this may

be seen a s essentia

lly c oncurre

nt.

9 Similarly

, partie s will have

little or no incenti

ve to abst ain from u sing ava

ilable admin istr ative remedi es to o btain a longe r stat ute of limi tati ons un der § 1 581(i ). Alt hough Shinyei , 355 F.3d

at 1309, in

dicates that liquid

ation will n

ot preve nt remed ies if a po stliquidation APA challenge to liquidation instructions is successful, that case involved a claim of in val id li qui dat io n co nt rar y to t he r esu lt s of com pl ete d l it iga ti on u nde r 28 U.S .C . § 1 581 (c) . In mo st cas es, th e ri sk o f ir rem edi abl e li qui dat io n wi ll com pel a pl ain ti ff p rom pt ly to fil e su it . In this case, plaintiffs arguably commenced suit before a § 1581(c) ca se could have commenced and Commerce was willing to delay liquidation instructions to Customs for only two weeks in order to allow the court to consider its jurisdiction. Further, where parties see k a return of funds or lo we r e st im at ed du ty r at es , t he re is ad di ti on al fi na nc ia l i nc en ti ve to fi le su it pr om pt ly. Fi na ll y, because none of plaintiffs’ entries are the subject of the 19 U.S.C. § 1675 reviews that led to the Final Re sults , the proceeding is not delay ed or impeded by a

separate 28 U.S.C. § 1581(i) action. The court does not conclude that § 1581(i) actions will allow parties to preempt
agenc y de cision-ma

king in a ntidumping

and coun tervaili ng duty cases. U nder 28 U .S.C. § 2637(d) , the cour

t may require administr

ative exha

ustion whe

re appr opriate . Followi

ng this statute, the court has not hesitated to deny relief when parties have failed to ra ise issues before the appropriate administrative bodies, if such an action would not be futile. See, e.g., Carpenter Tech. Corp. v. United States , 464 F. Supp. 2d 1347, 1349–50 (CIT 2006) (dismissing case for failure to exhaust administrative remedies in administrative review of an antidumping a ction) ; Ceramica Regiomontana, S.A. v. United States , 16 CIT 358, 362 (1992) (dismissing case f or failure to exhaust a

dministra tive reme dies in an

administr

ative re view of a counter vailing duty action). 9 Here the issue was thoroughly explored through comment on the policy and subsequent
agency consideration.Court No. 06-00289 Page 13

10 The pre liminary

injunction

sought would extend

through all level s of appe al.

11 It is unclear under Shinyei whether prior liquidation of entries would ever act as a bar (continued...) Congress did not intend for parties to guess if their action fits into a § 1581 pigeonhole. Those claims that involve clearly protestable matters, or are at the core of an antidumping or countervailing duty determination, must proceed under § 1581(a) or (c )
respectively . Other ma

tters not c learly

provided for in § 15 81(a)–(

h) were intended to fall int o § 1581(i) so that no one would be denied an avenue of re lief in this general subject matter area

. See H.R. Rep. 9 6-1235, a t 48; see also id. , at 59 (“ In a ny c ivil action other than the one s in subsections (a)–(c) of this section, the Court of I nternational Trade shall review the matter as provided for in the Administra

tive Proc edures Act, 5 U.S.C . 706.”) ; id. , at 52 (“Subsection (i) [of 28 U.S.C. § 2 631] is a ne w provision which sta

tes that a civil act ion other than one s

pecifie d in subsections (a)–(h) of this section may be commenced by

a person adversely

affected or
aggr ieved by a gove rnment a gency action wi thin the me aning o f 5 U.S.C. 7 02. This su bsection is intended to corre late with

and compl ement the

broad g rant of r esidual ju risdiction found in proposed section 1581(i).”); 5 U.S.C. § 704 (providing review under the APA for a “final agency action f or which there is n o other a dequate remedy in a cour t”). This action in volves a g eneral ly applicable administrative policy , unreviewed entries, and liquidation instructions not dependent on the results of the review. Jurisdiction is appropriate under 28 U.S.C. § 1581(i).

Plaintiffs next assert that they would suffer irr eparable harm if their entries are liquidated before this action is decided. 10 This is likely so, unless the rule of Shinyei is broadl y applied, 11 but even were the y a ble to esta

blish irre parable harm, pla

intiffs mu st also de

monstrateCourt No. 06-00289 Page 14

11 (...continued) to relief in an APA review of liquidation instructions. See supra note 9. that there is some chance they would succeed on the merits of this action. See Torrington Co. v. United States , 20 CIT 1293, 1295 (1996) (“The de cision in FMC [Corp. v. United States , 3 F.3d 424 (Fed. Cir. 1993),] makes it clear that showing irrepa rable harm . . . does not obviate the need to show some likelihood of success on the merits.”). Plaintiffs have not shown such a chance

.

19 C.F.R. § 351.212(c) is silent as to what constitutes the “request for an administrative review” that eliminates automatic liquidation at the producer’s deposit ra te. The Government interprets the regulation to mean a r equest by or a

bout any seller in the nonreviewee’s chain of sale. Plaintiffs interpre t it to mean a request by or applicable to the reseller at issue. The Gove

rnment de scribes

the purpo se of the

policy as follow s: [The] Reseller Policy

addresses an ambiguity

in Commerce’s regulations regarding the assessment ra te for liquidation of a reseller’s entries of a produc er’s merchandise when: (1) the reseller’ s entries entered under the producer’ s cashdeposit rate; (2) a review is requested of the pr oducer, but not of the reseller; and (3) the producer did not have knowledge at the time of the sale to the reseller that the merc handise was ultimat

ely destined for the U nited State s. (Def’s Combined Mot. to Dismiss & Resp. to Pls.’ Mot. for J. On the Agency R. 22.) Commerce may in the f

irst instance interpret its own regulation. Cathedra l Candle Co. v. U.S. Int’l Trade Comm’n , 400 F.3d 1352, 1363 (Fed. Cir. 2005) (“[I ]t is well settled that
an agency ’s interpretation of its own regulations is entitled to broad defere nce from the courts.”). Even if the court a

ccorde d Commerc e’s inter pretation a lesse

r degr ee of de ferenc e becau se it is a change in policy , the Reseller Policy is consistent with the regulation in the context of anCourt No. 06-00289 Page 15

12 The parties also agree a r eseller review may

be requested as a protective matter, and withdrawn if no one else requests a review in the a pplicable chain of sale. administr ative re view. Fi rst, bec ause a pr

oducer r eceive s a new r

ate upon r eview, the cash deposit rate plaintiffs seek no longer has validity . Thus, there seems to be no good reason for the cash dep osit rate

to be automaticall

y a pplied. Se cond, the

re is no r eason tha t a rese ller or it s importer should be entitled to choose among the rates it prefe rs when none is specific to it, and when it may reque st its own rate. Plaintiffs object to the “all others” rate, but they had a clear, althoug h perhap s expensive , avenue for avoi ding it – t

hey could hav e obtaine d a rese ller-spe cific

rate. 12 Furthermore, although 19 C.F.R. § 351.212(c) r efers to reviews of an order , it is sales of particular producers or exporters which a re reviewed. See 19 C.F.R. § 351.212(c)(2); 19 C.F.R. § 351.213(b). Thus, it is the sales of merchandise made in various steps from the produc er that are the subject of the review. As the Reseller Policy applies when the producer does not know that the goods are destined for the U.S. marke t, the Reseller Policy

focuses on the export sales whe re the pr ice discriminatio n may

have oc curred . There fore, Co mmerce’ s interpr etation is reasonable in the context of the entire review proce ss, and the court sees nothing in the Reseller Policy that is forbidden by statute or r egulation, and no indication that the policy is arbitrary a

nd capric ious. Moreover, as Commerce merely interpreted the ambiguous words “reque st for an administrative review” in 19 C.F.R. § 351.212(c), formal notice and c omment procedures under the APA were not required. Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’ y of Veter ans Affairs , 260 F.3d 1365, 1375 (Fed. Cir. 2001) (interpretive rules exempt from APA notice a nd commentCourt No. 06-00289 Page 16

13 See supra

note 3.

14 The cour

t does not r

each the issue of w

hether a ny i njunction grante d could ap

ply to plaintiff-intervenor’s entries. The res of an action brought under § 1581(i) is not as specific a s that of an action brought under § 1581(c). Thus, de fendant’s arguments in that reg ard are problematic. procedures). While the court notes that Commerce might have just as easily published notice of a regulation amendment, as a matter of fa irness, there was a long notification period, 13 which allowed for comment. Further, the reseller policy has been r

uled not impermissibly retroactive. Parkdale Int’l v. United States , 475 F.3d 1375, 1378–79 (Fed. Cir. 2007) (discussing retroa ctive application of the Reseller Policy in a prior administrative review period). 14 The remainder of the injunctive factors do not weig h in plaintiffs’ favor and cannot overcome the fact that their claim, thus far , fails on the merits. See FMC , 3 F.3d at 431 (affir ming den ial of pre liminary

injunction

without dis cussion of

balance of hardships or pub lic interest , conclud

ing that proof of irrepa rable ha rm did not “ outweig

h [plaintif

f’s] failu re to establish a likelihood of success on the merits”).

Accordingly , plaintiffs’ motion for a preliminary injunction is DENIED.

/s/ Jane A. Re stani Jane A. Restani Chief Judge
Dated this 11th day of May , 2007. New York, New York.UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________ : PARKDALE I

NTERNATIONAL , LTD., : RIVERVI

EW STEEL CO., LTD., a nd : SAMUEL, SON & CO., LTD., : : Plaintiff s, :

: Before: Jane A. Res tani, Chief Judge and : : Court No. 06-00289 RUSSEL METALS EXPORT, : : Plaintiff-Intervenor, :

: v. : : UNI TED STATE S, : : Defendant. : ____________________________________: JUDGMENT This case having been submitted for decision and the c ourt, after deliberation, having rendered a dec ision therein; now, in conformity with that decision,

IT I S HEREBY ORDERED that Plaintiffs Parkdale Inter national, Ltd., Riverview Steel Co., Ltd., and Samuel, Son & Co., L td.’s motion for a preliminary injunction is denied. Plaintiff-Intervenor Russel Metals Export’s motion for a preliminary injunction is also denied.

/s/ Jane A. Re stani Jane A. Restani Chief Judge Dated: This 11th day of Ma y, 2007. New York, New York.ERRATA Please make the following changes to the Order published May 11, 2007 in Parkdale, et al. v. United States , Ct. No. 06-00289: • page 9, line 18: replace “Procedures” with “Procedure”.

Dated, May 16, 2007. /s/ Jane A. Restani Jane A. Restani Chief Judge