Slip Op. 05 - 97

 UNITED STATES COURT OF INTERNATIONAL TRADE

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UGINE & ALZ BELGIUM, N.V.; ARCELOR 

STAINLESS USA, LLC; and ARCELOR TRAD- : 

ING USA, LLC, 

 :

 Plaintiffs, 

 : 

 v. Court No. 05-00444

 :

UNITED STATES, 

 :

 Defendant. 

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 Opinion & Order

[Plaintiffs' preliminary application to 

 enjoin Department of Commerce liquidation

 instructions to Bureau of Customs denied.]

 Dated: August 17, 2005

Shearman & Sterling LLP (Robert S. LaRussa, Stephen J. Marzen

and Ryan A.T. Trapani) for the plaintiffs.

Peter D. Keisler, Assistant Attorney General; David M. Cohen,

Director, and Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Michael

D. Panzera); and Office of Chief Counsel for Import Administration,

U.S. Department of Commerce (Ada Loo and Arthur Sidney) and Bureau

of Customs and Border Protection, U.S. Department of Homeland

Security (Christopher Chen), of counsel, for the defendant.

Collier Shannon Scott, PLLC (David A. Hartquist, R. Alan Luberda, Kathleen W. Cannon and Adam H. Gordon) for proposed 

intervenor-defendants AK Steel Corporation, Allegheny Ludlum

Corporation, North American Stainless, United Auto Workers Local

3303, Zanesville Armco Independent Organization, and United Steelworkers of America, AFL-CIO/CLC.

AQUILINO, Senior Judge: Jurisdiction of the court is

pleaded to be pursuant to 28 U.S.C. §1581(i) over the subject

matter of this action, which is the propriety of certain liquida-
Court No. 05-00444 Page 2

 1 Referred to hereinafter as "CBP".

 2 Referred to hereinafter as "ITA".

tion instructions that have been issued to the Bureau of Customs

and Border Protection, U.S. Department of Homeland Security1

 by the

International Trade Administration, U.S. Department of Commerce2 in

conjunction with its Notice of Amended Final Determinations:

Stainless Steel Plate in Coils from Belgium and South Africa; and

Notice of Countervailing Duty Orders: Stainless Steel Plate in

Coils from Belgium, Italy and South Africa, 64 Fed.Reg. 25,288 (May

11, 1999), and its Antidumping Duty Orders; Certain Stainless Steel

Plate in Coils From Belgium, Canada, Italy, the Republic of Korea,

South Africa, and Taiwan, 64 Fed.Reg. 27,756 (May 21, 1999).

I

In commencing this action via summons and complaint,

counsel for the plaintiffs also filed applications for immediate

injunctive relief. The court promptly thereupon conferred with

them and counsel for the defendant (and the proposed intervenordefendants) who consented to entry (on July 27, 2005) of a

temporary restraining order, which, among other things, enjoins CBP

from implementing Liquidation Instructions issued by the

[ITA] in conjunction with Message No. 5182203 (July 1,

2005)[,] Message No[.] 5189205 (July 8, 2005), Message

No. 5189204 (July 8, 2005), Message No. 5199201 (July 18,

2005), or otherwise taking any action that results in the

treatment of entries of Stainless Steel Plate in Coils

hot rolled in Germany and not further cold rolled in

Belgium as having a country of origin of Belgium for the

purpose of assessing antidumping or countervailing

duties[.]
Court No. 05-00444 Page 3

The order covers listed entries of subject merchandise ("SSPC") in

the ports of Chicago (between July 29, 1999 and Oct. 31, 2001),

Houston (between Oct. 26, 1998 and Feb. 23, 2002), Los Angeles (on

April 13, 1999), Portland (between Feb. 10, 1999 and Jan. 29,

2002), Richmond (between Feb. 24, 1999 and July 17, 2001), Seattle

(between March 4, 1999 and Jan. 13, 2000), and Philadelphia

(between Sept. 8, 1998 and Feb. 25, 2002).

The defendant also consented to the motion of the abovenamed domestic interested parties and certified or recognized

unions within the meaning of 19 U.S.C. §1677(9)(C) and (D) for

leave to intervene in this action as parties defendant. The

plaintiffs have now filed papers in opposition to this motion to

intervene, arguing, among other things, that this action

is one solely between [them], whose entries are at issue,

and the Government.

For their part, [the] . . . Proposed Intervenors[]

cannot identify any legally cognizable interest in this

proceeding. Contrary to [their] suggestion, this proceeding is not an appeal of administrative review proceedings. Proposed Intervenors' interested party status

in such an appeal is thus entirely irrelevant. Nor is

this proceeding one to determine whether or to what

extent Proposed Intervenors are entitled to disbursements

from the special accounts created by the Continued Dumping and Subsidy Offset Act of 2000 ("CDSOA"), 19 U.S.C.

§ 1675c. As the Government has argued before the World

Trade Organization ("WTO"), the CDSOA is merely a disbursement program and "has nothing to do with imported

goods or importers." . . . Ex. 1. The CDSOA deals only

with the allocation and disbursement of already collected

duties, not the Government's prior discretionary procedures to assess and collect those duties.
Court No. 05-00444 Page 4

Memorandum in Opposition to Motion to Intervene, pp. 1-2. This

opposition has engendered in turn a motion by the proposed

intervenor-defendants for leave to respond to the plaintiffs, which

motion is hereby granted. The response is, in part, that, 

while domestic parties may not appeal a liquidation by

Customs that has occurred, they can participate in a

challenge to liquidation instructions issued by Commerce

prior to liquidation. Arcelor cites no authority to the

contrary. Proposed intervenors were interested parties

in the proceedings that generated the challenged liquidation instructions, and indeed, Commerce sought comments

from the domestic industry as well as Arcelor as to the

appropriate scope and nature of those instructions. Proposed intervenors clearly have a cognizable interest in

the instructions issued and the underlying decision that

they represent.

Motion for Leave to Respond to Plaintiffs' Opposition to Motion to

Intervene, pp. 2-3.

Upon consideration of the arguments, well-presented on

both sides, the court concludes that the determinative factor is

the direct participation before the ITA by the petitioners-cumproposed-parties-at-bar in the agency promulgation of the liquidation instructions now at issue herein. See, e.g., Memorandum in

Support of Plaintiffs' Motion for Temporary Restraining Order and

Preliminary Injunction [hereinafter "Plaintiffs' Memorandum"], Exhibit 9. That is, having been privy to and part of that administrative process, their motion for leave to formally join the

judicial review of the results thereof can be, and it hereby is,

granted. 
Court No. 05-00444 Page 5

II

According to the complaint and corporate disclosure

statements on USCIT Form 13 filed in conjunction therewith, the

first-named plaintiff is a corporation organized under the laws of

Belgium, whereas the two Arcelor firms are creatures of the law of

Delaware, U.S.A. All three corporations are wholly-owned subsidiaries of a Luxembourg corporation, Arcelor S.A. Their complaint

avers:

German SSPC Mistakenly Entered as Belgian Merchandise

 9. From September 4, 1998 to April 30, 2002, Arcelor imported into the United States SSPC that was 

hot rolled in Germany and not further cold rolled in

Belgium. The country of origin of such merchandise 

is Germany.

 10. Although the SSPC was not further cold rolled

in Belgium, it was pickled, annealed, packaged, and

shipped from Belgium. Accordingly, at the time of entry, Arcelor mistakenly declared the country of origin

for the merchandise to be Belgium rather than Germany.

 11. At the time Arcelor's German SSPC entered the

United States, the Antidumping and Countervailing Duty

Orders for SSPC from Belgium were in effect.

 12. Arcelor paid cash deposits of antidumping and

countervailing duties on the German hot-rolled SSPC

that entered the United States at the rates specified

in the Orders for Belgian SSPC.

 13. Because the country of origin of the SSPC imported by Arcelor is Germany, that merchandise was not

and never has been subject to the Antidumping and Countervailing Duty Orders for S[SPC] from Belgium and Arcelor should not have had to pay cash deposits of antidumping and countervailing duties.

 14. Promptly after realizing its mistake, Arcelor 

filed disclosures and timely protests with Customs 

pursuant to 19 U.S.C. § 1514 to correct the country of 

origin.
Court No. 05-00444 Page 6

 15. For its part, Commerce mistakenly included the 

German SSPC in its calculation of the antidumping duty

rates for Belgian SSPC in the first, second and third

periods of review.

 * * * 

 16. Consistent with its long-standing practice, 

in the Fourth Administrative Review of the Antidumping

Duty Order for S[SPC] from Belgium, Commerce determined

that SSPC hot rolled in Germany and not further cold

rolled in Belgium is German. . . .

 * * * 

Commerce Instructed Customs to Liquidate Entries

of Arcelor's German SSPC as Belgian Merchandise

 * * * 

 20. On July 1, 2005, Commerce issued to Customs 

. . . Fourth Review Period Antidumping Duty Liquidation Instructions[]. Those instructions limited - to

entries of SSPC made on or after May 1, 2002 - application of Commerce's determination that SSPC hot rolled in Germany and not further cold rolled in Belgium 

is not subject to the Antidumping Duty Order.

 21. On July 1, 2005, Commerce issued a memorandum attempting to explain its reasons for issuing the

Fourth Review Period Antidumping Duty Liquidation Instructions. . . . Commerce refused to state that all

SSPC hot rolled in Germany and not further cold rolled

in Belgium, imported by Arcelor, is German for countryof-origin purposes. . . . 

 22. On July 8, 2005, . . . Commerce issued . . .

for . . . entries for the period 09/01/1998 through

12/31/1999 [] "Countervailing Duty Liquidation Instructions" [that] . . . instructed Customs to liquidate

SSPC hot rolled in Germany and not further cold rolled

in Belgium as merchandise subject to the countervailing

duty order for SSPC from Belgium. . . . Commerce gave

no reason why it instructed Customs to liquidate German

merchandise as Belgian.

 23. On July 8, 2005, . . . Commerce issued Countervailing Duty Cash Deposit Instructions for S[SPC]

from Belgium [that] . . . instructed Customs that
Court No. 05-00444 Page 7

 3 Boldface headings in original; citations omitted.

"[e]ffective 05/01/2002 . . . entries of SSPC hot rolled in Germany and not further cold rolled in Belgium

are not subject to the suspension of liquidation and do

not require cash deposits of estimated countervailing

duties." . . .

 24. On July 18, 2005, Commerce instructed Customs

to liquidate German hot rolled SSPC entered between

November 4, 1998 and April 30, 2000 as subject to the

Antidumping Duty Order for SSPC from Belgium. . . . As

with the Countervailing Duty Liquidation Instructions,

Commerce gave no reason why it instructed Customs to

liquidate German merchandise as Belgian.3

Whereupon the plaintiffs claim that the referenced liquidation

instructions are arbitrary, capricious, an abuse of discretion, and

otherwise not in accordance with law under 5 U.S.C. §706(2)(A).

They pray for a declaratory judgment to this effect, which would be

the basis of injunction(s) against those instructions and a possible remand to the defendant in connection therewith.

A

The plaintiffs recognize, as they must, that a preliminary injunction is an extraordinary remedy and can only be granted

upon showing:

(1) A threat of immediate irreparable harm; (2) that the

public interest would be better served by issuing than by

denying the injunction; (3) a likelihood of success on

the merits; and (4) that the balance of hardship on the

parties favor[s issuance].

S.J. Stile Associates, Ltd. v. Snyder, 68 CCPA 27, 30, C.A.D. 1261,

646 F.2d 522, 525 (1981). That is, failure to bear the burden of
Court No. 05-00444 Page 8

persuasion as to any of these four factors is ground for denial of

an application. E.g., American Stevedoring Inc. v. U.S. Customs

Service, 18 CIT 331, 335, 852 F.Supp. 1067, 1071 (1994), citing Bomont Industries v. United States, 10 CIT 431, 638 F.Supp. 1334

(1986), and FMC Corporation v. United States 3 F.3d 424, 427 (Fed.

Cir. 1993). See Plaintiffs' Memorandum, p. 5, citing Zenith Radio

Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir. 1983).

(1)

Zenith is, of course, seminal authority with regard to

the Trade Agreements Act of 1979, as amended, but the controlling

issue therein was whether liquidation of the underlying entries

would eliminate the only remedy for an incorrect ITA determination

pursuant to that act's section 751 by depriving the Court of International Trade of the ability (i.e., jurisdiction) to ensure antidumping duties in accordance with the correct margin for those

entries. The court of appeals concluded that it would. See 710

F.2d at 809-10 and, for example, SKF USA Inc. v. United States, 28

CIT , , 316 F.Supp.2d 1322, 1327 (2004). But jurisdiction of

the court is not necessarily in jeopardy. Indeed, as recited 

above, paragraph 14, the plaintiffs claim to have filed timely

protests with Customs pursuant to 19 U.S.C. §1514 which, one could

assume, provide them with some current protective comfort.

Be those protests as they are, this action encompasses

numerous entries that have yet to be liquidated, and which has been
Court No. 05-00444 Page 9

restrained, at least temporarily pending this preliminary opinion.

In seeking to extend this injunctive relief, plaintiffs' argument

with regard to irreparable harm is as follows:

. . . If Customs executes those [ITA] instructions, this

action will become moot, Commerce's instructions will be

insulated from judicial review, and Arcelor will lose its

day in court. "Plainly, irreparable harm will occur 

. . . if Commerce's action is not subject to judicial

review; and if plaintiff will be deprived of its right to

contest antidumping duty assessments when the liquidation

of entries currently held by Customs are liquidated."

Royal Business Machs., Inc. v. United States, . . . 1

C.I.T. 24, 25 . . . [1980).

To be sure, Arcelor ha[s] pending protests before

Customs. But "Customs merely follows Commerce's instructions" and "has a merely ministerial role in liquidating

antidumping duties under 19 U.S.C. §1514(a)(5)." Mitsubishi Elecs. America, Inc. v. United States, 44 F.3d 973,

977 (Fed.Cir. 1994). Where, as here, "Commerce sent

liquidation instructions to Customs, which then imposed

antidumping duties as directed by Commerce as part of its

ministerial functions," Commerce's liquidation instructions would not be subject to protest and "[t]he court

has no jurisdiction pursuant to [28 U.S.C.] § 1581(a) for

it was Commerce's instructions, rather than an independent decision by Customs, which determined the antidumping

rate." J.S. Stone Inc. v. United States, 297 F.Supp.2d

1333, 1338 (CIT 2003).

Plaintiffs' Memorandum, pp. 5-6.

If this position were well-settled, then plaintiffs'

formal protests could prove to be of no conclusive moment. But 

this court notes that all that was before the court in the cited

Royal Business Machines matter was purported immediate concern by

that plaintiff that the ITA might come to modify the scope of an

outstanding antidumping-duty order, ergo the court's conditional
Court No. 05-00444 Page 10

language quoted above; and this court also notes that J.S. Stone,

Inc. v. United States, 27 CIT , and 297 F.Supp.2d 1333, 1338

n. 6 (2003), aff'd, 111 Fed.Appx. 611 (Fed.Cir. 2004), itself cites

Xerox Corp. v. United States, 289 F.3d 792, 795 (Fed.Cir. 2002), as

holding that,

when a plaintiff's goods are facially outside of the

scope of an antidumping duty order, a scope determination

by Commerce and participation in the antidumping review

were unnecessary predicates to a challenge of Customs

imposition of antidumping duties. The Federal Circuit

explained that . . . "the . . . misapplication of the

order by Customs was properly the subject of a protest"

under 19 U.S.C. §1514(a)(2) and reviewable by the CIT

under 28 U.S.C. §1581(a). . . . Thus, misapplication of

an antidumping order or the erroneous imposition of

antidumping duties by Customs may be protested and suit

brought before the court pursuant to § 1581(a).[]

In fact, it was the undersigned's opinion in Xerox Corp. v. United

States, 24 CIT 1145, 118 F.Supp.2d 1353 (2000), to the opposite

effect that was reversed and remanded by the court of appeals.

Accepting this appellate enlightenment makes it now

difficult to conclude that plaintiffs' procedural posture herein

amounts to unequivocal irreparable harm. 

(2)

As for whatever harm is actually at bar, this court can

conclude that it weighs more on the plaintiffs than on either the

defendant or the intervenor-defendants for the reasons so succinctly stated, to wit:

. . . The government holds cash deposits. If Arcelor

does not succeed on its claims, interested parties are

fully secured.
Court No. 05-00444 Page 11

 4 Intervenor-Defendants' Response to Plaintiffs' Motion for

Preliminary Injunction, pp. 1-2 (emphasis in original).

(footnote continued)

Plaintiffs' Memorandum, p. 11. Perhaps this is why experienced

counsel for the defendant and also for the intervenors have now

filed papers, consenting, at least for purposes of orderly proceeding, to entry of a preliminary injunction. On behalf of the

government, they state their 

consent . . ., although we dispute that plaintiff[sic]

has established a likelihood of success upon the merits

of plaintiffs' claims. Indeed, in our view, plaintiffs'

claims are wholly without merit, and plaintiffs stand no

chance of prevailing upon the merits. However, a preliminary injunction will prevent the irreparable harm

from liquidation of any entries that have not yet been

liquidated. See Zenith Radio Corp. v. United States, 710

F.2d 806, 810 (Fed.Cir. 1983).

Defendant's Response to Motion for Preliminary Injunction, p. 1.

The other filing states that the

intervenors believe that plaintiffs do not meet any of

the requirements to receive a preliminary injunction. 

. . . [Also], it appears that granting a preliminary injunction against liquidation of all of the listed entries

may be inappropriate, because it appears that some or all

of the entries for which plaintiffs seek to enjoin

liquidation have already been deemed liquidated as a

matter of law under 19 U.S.C. § 1504(d). The request for

an injunction is not timely made for any entries that

have been liquidated as a matter of law.

Despite these defects in plaintiffs' application,

proposed intervenors conditionally consent to the

granting of a preliminary injunction for purely practical

reasons -- to allow the Government and the parties to

fully research and brief these substantive issues, particularly concerning the history and liquidation status

of the subject entries. . . .4
Court No. 05-00444 Page 12

The court notes in passing that both responses set forth

lists of entries that respective counsel apparently consider at

least arguably at issue. According to the defendant's,

[o]n August 10, 2005, plaintiffs stated that they have

no objection to our amendments to their original proposed preliminary injunction order.

Defendant's Response to Motion for Preliminary Injunction, p. 2.

 5 Plaintiffs' Memorandum, p. 11.

 6 Cf. id. at 4 n. 2:

. . . [S]ince Arcelor cannot know until after liquidation whether its remedy lies on review of Customs'

protest decision or Commerce's liquidation instructions, an injunction must be granted now to preserve

this Court's jurisdiction and Arcelor's right to judicial review.

(3)

However salutary the concerns for orderly proceeding (and

even accommodation) are, all who engage in international trade with

the United States, and in subsequent administrative and judicial

review thereof, must adhere, to the best of their respective

situations, to the dictates of the governing law and related rules

of practice. While the court can subscribe to plaintiffs' argument

that the public has a compelling interest in judicial review of

administrative action5

, this subscription does not automatically

favor them (or alleviate their perceived predicament6). That is,

it is not clear from the record, such as it has been presented

initially, that the public's interest compels entry now of a preliminary injunction in favor of the plaintiffs.
Court No. 05-00444 Page 13

 7 Id. at 6 (initial capital letters and boldface print of all

the words deleted).

(4)

Whatever the harm and its precise balance between the

various parties herein may be, this court and others have held that

the severity of the injury the moving party will sustain without

injunctive relief is in inverse proportion to the showing of

likelihood of success on the merits. E.g., Wolverine Tube (Canada),

Inc. v. United States, 23 CIT 76, 78, 36 F.Supp.2d 410, 413 (1999),

citing Makita Corp. v. United States, 17 CIT 240, 250, 819 F.Supp.

1099, 1108 (1993); Ceramica Regiomontana, S.A. v. United States, 7

CIT 390, 395, 590 F.Supp. 1260, 1264 (1984); American Air Parcel

Forwarding Co. v. United States, 1 CIT 293, 300, 515 F.Supp. 47, 53

(1981).

The plaintiffs claim a "substantial likelihood of success" in challenging the ITA's liquidation instructions because

"they are flatly inconsistent with the agency's long-standing

practice and its subsequent determination in this proceeding".7 Of

course, the main issue at bar is whether that determination can be

drawn into "this proceeding". As the complaint itself indicates,

supra, that subsequent determination was rendered as a result of

the ITA's fourth administrative review pursuant to section 751 of

the Trade Agreements Act, 19 U.S.C. §1675, and not during the

preceding three such reviews that covered the entries that are now

subject to plaintiffs' attempt at resurrection -- in the aftermath
Court No. 05-00444 Page 14

 8 Id., Exhibit 6, p. 7 (July 1, 2005)(Memorandum re Customs

Instructions for the Final Results of the Fourth Administrative

Review of the Antidumping Duty Order on . . . SSPC[] from Belgium)(citation to Comment 4 of the ITA Issues and Decision Memorandum of the Fourth Administrative Review of the Antidumping

Duty Order on . . . SSPC[] from Belgium (Dec. 14, 2004), ibid.,

Exhibit 1, available at http://ia.ita.doc.gov/frn/summary/2004-

dec.htm, omitted).

of that fourth ITA review, which led the agency specifically to

determine that its decision apply only to SSPC entries on or after

May 1, 2002, viz.:

In the context of the fourth review, Respondent submitted information to the record showing that it had sold

German SSPC to the United States. For the final results

of the fourth review of this antidumping duty order, we

determined that SSPC hot-rolled in Germany and not

further cold-rolled in Belgium was not subject to the

antidumping duty order on SSPC from Belgium. . . . As

such, our analysis of Respondent's sales of SSPC to the

United States made during the POR for the fourth review

did not include sales of German SSPC. During the fourth

administrative review, neither the Petitioners nor the

Respondent raised this country of origin issue with respect to any specific sales reviewed during prior 

administrative reviews of this order or the effect of the

country of origin decision on unliquidated entries from

prior closed reviews. As articulated in Comment 1 above,

consistent with the Torrington Remand, we find that 1)

our position regarding the German merchandise is fully

articulated and final, 2) we did not calculate antidumping margins using German merchandise in the Fourth

Administrative Review, and 3) the country of origin of

merchandise hot-rolled in Germany was first raised in the

Fourth Administrative Review. Therefore, we recommend

applying our country of origin determination to entries

covered by the fourth review and future entries, i.e., 

to entries made on or after May 1, 2002.8

And CBP was instructed accordingly. See Plaintiffs' Memorandum,

Exhibit 2, para. 3 (July 1, 2005):

Based on the evidence reviewed by Commerce in conducting the administrative review of entries made during
Court No. 05-00444 Page 15

this period (05/01/02-04/30/03), the Department has

determined that imports of SSPC hot rolled in Germany and

not further cold rolled in Belgium are not subject to the

antidumping duty order on SSPC from Belgium. Entries of

this merchandise made on or after 05/01/02 should be

liquidated without regard to antidumping duties.

Capitalization deleted. Compare id. with id., Exhibit 10 (June 23,

2005)(ITA draft liquidation instructions) and id., Exhibit 4, para.

5 (July 18, 2005)(antidumping-duty liquidation instructions for

period 11/4/98 to 4/30/00) and id. Exhibit 5, para. 7 (July 8,

2005)(countervailing-duty liquidation instructions for period

9/4/98 to 12/31/99). 

In support of their claim of "substantial likelihood of

success" on the merits, the plaintiffs challenge the agency's

position on two grounds, namely, (a) it is contrary to law, and

(b), because their entries have not been liquidated, administrative

finality does not prevent correction of the country of origin.

(a)

Their complaint, as recited above, is that, for their

entries between September 4, 1998 and April 30, 2002, they "mistakenly" declared the country of origin to be Belgium rather than

Germany, whereupon they paid cash deposits of antidumping and

countervailing duties on their merchandise that entered the United

States during those four years as specified in the underlying

orders governing Belgium. Moreover, the plaintiffs claim that 
Court No. 05-00444 Page 16

[n]either Arcelor nor Commerce caught the mistake during

the first three administrative reviews of the antidumping

and countervailing duty orders on SSPC from Belgium. The

mistake was identified and corrected in the fourth administrative review.

Plaintiffs' Memorandum, p. 2. Yet, they seem critical that the

"only pertinent 'evidence' in the [fourth] administrative record

. . . is evidence of the country in which the steel was hot

rolled." Id. at 8. Nonetheless, they refer to other ITA proceedings involving steel wherein that alone was also the determinative

factor for country of origin. Finally, they cite Renesas Technology America, Inc. v. United States, 27 CIT , Slip Op. 03-106

(Aug. 18, 2003), to the effect that "liquidation instructions that

treat identical merchandise differently are arbitrary and capricious". Id. But that case, which contested an ITA instruction to

liquidate entries of an unreviewed reseller of such subject merchandise at the cash deposit rate, has been summarily reversed on

appeal, Renesas Technology America, Inc. v. United States, Nos. 04-

1473,-1474, 2005 WL 1540159 (Fed.Cir. July 1, 2005), based upon the

opinion of the same date in Nissei Sangyo America, Ltd. v. United

States, Nos. 04-1469,-1492, 2005 WL 1540161, at *1 (Fed.Cir. July

1, 2005), wherein the court of appeals stated that,

[b]ecause the arguments in favor of the appellee [imports] are foreclosed by the decisions in Consolidated

Bearings Co. v. United States, 348 F.3d 997 (Fed.Cir. 

2003) . . ., and Consolidated Bearings Co. v. United

States, [412 F.3d 1266] (Fed.Cir. June 21, 2005) . . .,

which collectively held that an unreviewed reseller is

not statutorily entitled to the manufacturer's review

rate and that Commerce in the past consistently liqui-
Court No. 05-00444 Page 17

 9 The plaintiffs have reproduced a copy of this redetermination and appended it to their memorandum as exhibit 7.

dated unreviewed entries from unrelated resellers at the

cash deposit rate, we reverse the decision of the Court

of International Trade.

Emphasis in original.

If this then is the only court case the plaintiffs can

cite, it provides no obvious support for their thesis herein.

(b)

As indicated above, the ITA provided the parties with

draft customs instructions. See Plaintiffs' Memorandum, Exhibit

10. And both sides responded. Compare id., Exhibit 8 with id.,

Exhibit 9. The agency thereupon promulgated the instructions now

at issue. See generally id., Exhibit 6. Among other things, it

referred to and relied on its Final Results of Redetermination on

Remand9 that issued pursuant to the order of the court in Torrington Co. v. United States, 23 CIT 452 (1999), that the ITA apply to

its

Final Scope Ruling - Antidumping Duty Order on Cylindrical Roller Bearings and Parts Thereof from Japan -

Regarding a Certain Cylindrical Roller Bearing Produced

by Koyo Seiko Co., Ltd., and Imported by Koyo Corporation

of U.S.A. (Aug. 10, 1998), an effective date in accordance with the Court's holding in Timken Co. v. United

States, 21 CIT 889, 972 F.Supp. 702 (1997), aff'd sub 

nom. Koyo Seiko Co., Ltd. v. United Sates, 155 F.3d 574

(Fed.Cir. 1998).
Court No. 05-00444 Page 18

 10 See Torrington Co. v. United States, 24 CIT 306 (2000).

 11 Plaintiffs' Memorandum, Exhibit 6, p. 4 (emphasis added and

citations omitted by ITA herein).

Judicial affirmance of those final results in their entirety10 led

to the agency's repetition of the following statement therein in

response to the [plaintiffs'] comments on its draft liquidation

instructions herein:

In Timken, the Court held that unliquidated merchandise

which entered the customs territory of the United States

after the publication of the antidumping duty order, but

before the issuance of the scope ruling, should be liquidated in accordance with the antidumping duty order.

The CIT, however, stated that its holding was not

intended to disturb the principles of administrative

finality, i.e., require the re-opening or re-review of

closed proceedings. Thus, while a scope determination

once made is effective back to the publication of the antidumping duty order, the CIT's holding in Timken requires the Department to apply the scope determination

only as far back as the principle of administrative

finality warrants - back to unliquidated entries of subject merchandise covered by any administrative review

period open at the time the scope issue was first raised,

and to all unliquidated entries on in-scope merchandise

after that period.11

The plaintiffs attempt to undermine this reasoning by

referring to the underlying Timken litigation cited above, but, on

its face, Torrington stands as further refinement of the import of

subsequent rulings as to the precise scope of an antidumping or

countervailing-duty order. Whereupon the plaintiffs add that,

even if this Court were to adopt Commerce's Torrington

redetermination, it would only limit the inclusion of 

"subject merchandise covered by any administrative review

period open at the time the scope issue was first

raised." . . . It does not by its terms prevent exclusion of non-subject merchandise - such as German merchan-
Court No. 05-00444 Page 19

 12 The court's temporary restraining order is hereby extended

to the close of business on that day.

dise from orders covering Belgian merchandise. Since

non-subject merchandise was (by definition) never subject

to the antidumping and countervailing duty orders, entries of such merchandise cannot be liquidated as subject

merchandise. Any instructions to do so would be contrary

to law. As a result, Arcelor has a substantial likelihood of succeeding in its claim that Commerce has no

legal authority to instruct Customs to liquidate German

SSPC as Belgian merchandise.

Plaintiffs' Memorandum, p. 10 (emphasis in original; citation

omitted).

This court cannot concur.

III

In sum, the court cannot and therefore does not conclude

that plaintiffs' instant application satisfies all of the standards

for grant of the extraordinary interim equitable relief that is a

preliminary injunction. Before entry of an order to this effect,

however, the plaintiffs may inform the court and opposing counsel

on or before August 24, 200512, as to how they propose to proceed

from now on in this matter.

So ordered.

Dated: New York, New York

 August 17, 2005

 Thomas J. Aquilino, Jr. 

 Senior Judge