MUKAND INTERNATI ONAL, L TD., Plaintiff,

v. UNITED STATES OF AMERICA,

Defend ant. SLIP OP. 05-164 UNITED STATES COURT OF I NTERNATIONAL

TRADE

Before: JANE A. RES TANI, Ch ief J udge Court No. 05-00034

OPINION [Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction is Granted. ] Dated: December 22, 2005 Miller & Chevalier

( Peter J. Koe

nig ) for the plaintiff. Peter D. Keisler , Assistant Attorney Gene ral, David M. Cohen , Director, Commercial Litiga tion Branch, Civil Division, U.S. Department of Justice, Jeanne E. Davidson , Deputy Direc tor, Commercial Litigation Bra nch, Civil Division, U.S. Department of Justice, ( Stephen C. Tosini ), Matthew D. Walden , Office of the Chief Counsel for I mport Administration, U.S. Department of Commerce, of counsel, for the d efenda nt. Restani, C hief Judg e: Mukand Inte rnationa l, Ltd . (“Muka

nd”) bri ngs this a ction to request a writ of mandamus to compel the Bureau of Customs and Border Protection (“Customs”) to refund all antidumping duties collected on Mukand’s entries of stainless steel bar (“SSB”) produced in the United Arab Emirates ( “UAE”) using stainless steel wire rod (“ SSWR”) from India. Mukand asserts that the imprope rly liquidated entries we

re entered into the United States between June 5, 2000, and January 8, 2002. De fendant seeks to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(5).Court No. 05-00034 2

1 Mukand asserts that Customs liquidated the entries of Mukand SSB from UAE for the POR 2000-2001 on February 27, 2004. Complaint 7.

BACKGROUND On February

21, 1995, the Department of Commerce (“Commerce” ) issued an antidumping order upon SSB from I ndia. Antidumping Duty Orde rs: Stainless Steel Bar from Brazil, India and Japan , 60 Fed. Reg. 9661 (Dep’t Commerce F eb. 21, 1995) [hereinafter SSB Order ]. In the SSB Order , Commerce imposed an antidumping duty rate of 21.02% on Mukand’s entries of SSB from India using adverse facts available. Id. Beginning in June of 2000, Mukand began importing SSB produced in the UAE using SSWR from India. On March 22, 2005, Commerce clarified that entries of SSB produced in the UA E using SSWR from India are not subject to the SSB Order , but not before Customs liquidated Mukand’s entries of SSB from UAE during the period of review from F ebruary 1, 2000 through January 31, 2001 ( “POR 2000-2001”) and the period of review from Febr uary 1, 2001 throug

h January 31, 2002 (“POR 2001-2002”)

. On Febr uary 14, 2001, C ommerce

notified i ntereste d partie s of the op portunity to request an administrative review of the SSB Order for the POR 2000-2001. Antidumping or Countervailing Duty Order, Finding, or Suspended I nvestigation; Opportunity to Request Admin. Review , 66 Fed. Reg. 10,269 (Dep’t Commerce F eb. 14, 2001). On March 22, 2001, Commerce initiated an antidumping duty administrative re view, but no interested party requested a review related to Mukand’s imports of SSB. Initiation of Antidumping & Countervailing Duty Admin. Reviews & Requests for Revocations in Part , 66 Fed. Reg. 16,037 (Dep’t Commerce Ma r. 22, 2001). Ac cording ly, on May 18, 2002, C ommerce

issued ins tructions

to Customs to

liquidate Mukand’s entries of SSB for the POR 2000-2001. 1 Def’s Mo t. to Dismiss 3. On July 11, 2002,Court No. 05-00034 3

2 On May 22, 2002, C ommerce

issued an antidumpin

g duty questionnaire to Mu

kand with a response deadline of June 28, 2002. Without requesting an extension, Mukand responded on August 2, 2002, stating that it made no SSB shipments to the United States during the POR. Commerce determined that it would not consider Mukand’s late response. I t noted, however, that shipment data furnished by Customs indicated that Mukand ma de SSB shipments to the United States during the POR. Commerce published the final results of its administrative review on SSB from I ndia for the POR
2000-2001. Stainless Steel Bar from India; F inal Results of Antidumping Admin. Review , 67 Fed. Reg. 45,956 (Dep’t Commerce July 11, 2002) [hereinafter 2000–2001 Admin. Review Final Results ]. On Febr

uary 1, 2002, Co mmerce n

otified in tereste d partie s of the op

portunity to request an administrative review of the SSB Order for the POR 2001-2002. Antidumping or Countervailing Duty Order, Finding, or Suspended I nvestigation; Opportunity to Request Admin. Review , 67 Fed. Reg. 4945 (Dep’t Commerce F eb. 1, 2002). On March 7, 2002, Commerce initiated an antidumping duty administrative re view at the request of interested parties, including Mukand. Preliminary Results of Antidumping Duty Admin. Review & Partial Rescission of Admin. Review , 67 Fed. Reg. 10,377 (Dep’t Commerce Ma r. 7, 2002). Commerce issued antidumping duty questionnaire s to the interested parties on May 22, 2002, but Mukand submitted a

n untimely

response , and Comme

rce re fused to c onsider i

t. 2 On September 10, 2002, Mukand submitted a scope ruling request to Commerce seeking clarification as to whether its entries of SSB produced in the UAE using SSWR from India were subject to the SSB Order . On October 28, 2002, Commerce acknowledg ed receipt of the scope ruling r equest, b ut deter mined tha t the req uest was i ncomplet e and re quired Mu

kand toCourt No. 05-00034 4

3 In its response to Mukand, Commerce stated that it was unc ertain as to whether Mukand was requesting a scope ruling w ith respect to the SSB Order or with respect to the antidumping order upon SSWR from India. See Antidumping Duty Orde r: Certain Stainless Steel Wire Rods from I ndia , 58 Fed. Reg. 63,335 (Dep’t Commerce De c. 1, 1993) [hereinafter SSWR Order ]. Mukand submitted additional scope ruling requests on November 25, 2002, and April 30, 2003. By letters dated January 10, 2003, and Ma y 14, 2003, Commerce re jected each request on the ground that the requests were incomplete.

4 Following Mukand’s May 14, 2003 submission, Commerce did not respond with a request for additional information. In its motion to dismiss, the government conc edes that Commerce accepted this request as a complete d request for a scope ruling. See Def’s Mo t. to Dismiss 2. provide additional information. 3 Following subsequent Mukand submissions and Commerce rejections, Mukand filed its fourth and final scope ruling re quest on May 14, 2003, which Commerce

accept ed as a c ompleted

request

. 4 Simultaneously, Commerce conducted its administrative re view for the POR 2001-2002. On March, 7, 2003, Commerce imposed a preliminary antidumping duty rate

of 21.02% on Mukand’s entries of SSB for the POR 2001-2002, using adverse facts available. Notice of Preliminary Re sults of Antidumping Duty Admin. Review: Stainless Steel Bar from India , 68 Fed. Reg. 11,058 (Dep’t Commerce Ma rch 7, 2003). Mukand submitted a brief and rebutta l challen ging Co mmerce’ s determi nation on t

he gro und that da

ta from Cu stoms only pertained to SSB from the UAE produced by Mukand’s affiliate, United Bright Steels, L td., not SSB produ

ced by Mukand in I

ndia. On A

ugust 11 , 2003, Comm erce pu blished th e final r

esults of its administrative review on SSB from India f or the POR 2001-2002. Stainless Steel Bar from India; Final Results of Antidumping Admin. Review , 68 Fed. Reg. 47,543 (Dep’t Commerce Aug. 11, 2003) [hereinafter 2001–2002Admin. Rev iew Fina l Results ]. Commerc e affir med its use of the adverse facts available r ate for Mukand based on its untimely response and did notCourt No. 05-00034 5

5 The par ties ag ree tha t Mukand’ s reques t for a wr it of manda

mus to comp el Commer

ce to issue a scope determination and to suspend liquidation of Mukand’s entries of SSB from UAE was mooted by the Final Scope Ruling

. address Mukand’s scope argument. Id. On Octobe r 17, 2003 , Commerc e direc ted Customs to lift suspension and liquidate these entries. On November 14, 2003, Customs liquidated Mukand’s entries of SSB. Mukand filed protests against Customs’ liquidation of the entries, and Customs denied the protests.

On Januar

y 19 , 2005, Muk

and file d a compla

int aga inst Commer

ce seek ing a wr it of mandamus to compel Commerce to issue a scope determination, suspend any further liquidation, and refund all antidumping duties on Mukand’s imports of SSB from UAE. Mukand also supplemented its outstanding application for a scope ruling by letter dated February

22, 2005. On March 25, 2005, Commerce formally initiated a scope inquiry a nd issued a preliminary scope ruling determining that Mukand’s entries of SSB from UAE were outside the scope of the antidumping order. Initiation of Scope I nquiry & Pre liminary Scope Ruling Memora ndum (Dep’t Commerce Mar. 25, 2005). On May 23, 2005, Commerce issued a final scope ruling determining that SSB produced in the UAE using SSWR from I ndia is not subject to the SSB Order

. Final Scope Ruling, Antidumping Duty Orders on Stainless Steel Bar from I ndia & Stainless S teel Wire

Rod from I

ndia , (Dep’t Commerce May 23, 2005) [hereinafter Final Scope Ruling ]. DISCUSSION

At prese nt, Mukand

seeks a r efund of antidumpin

g duties paid on imp orts of SSB from UAE that Commerce determined to be outside the scope of the SSB Order

. 5 Mukand’sCourt No. 05-00034 6

6 The parties appear to agre e that Commerce failed to timely respond to Mukand’s request. The government concedes that in its May 14, 2003 submission, “Mukand requested that Commerce find that the stainless steel bar that Mukand produces in the United Ara b Emirates . . . out of stainless steel wire rod from India is not within the scope of the order upon stainless steel bar fro m Indi a,” y

et it does n

ot explain w

hy C ommerce

did not initi ate a sc ope inquir y un til March 25, 2005. Def’s Mo t. to Dismiss 2, 12. complaint asserts that Commerce failed to follow its scope determination procedure s, which caused the improper liquidation of Mukand’s entries. Mukand arg ues that Commerce accepted its request for a scope ruling on May 13, 2003, after which it was required, “[w]ithin 45 day s of the date of receipt of an application for a scope ruling,” to issue a final ruling or initiate a sc ope inquiry . 19 C.F.R. § 351.225( c)(2). If Co mmerce had initiat ed an inqu

iry , Mukand a

rgues t hat it would have been required to instruct Customs to continue the then ongoing suspe nsion of liquidation for its entries pending a scope ruling. See 19 C.F.R § 351.225(l)(1) (When Commerce

“conducts a scope

inquiry . . . and th e product in question is alrea dy s ubject to suspension of liquidation, that suspension of liquidation will be continued, pending a preliminary or a fina l scope r uling.” ). Commer

ce did not , howeve

r, forma lly i nitiate a scope inq

uiry until March 25, 2005. 6 Mukand argues that Commerce erre d by failing to initiate the sc ope inquiry within 45 days, and err

ed by failing

to continue suspension of liquidation of Mukand’s entries. As an initial matter, the Court considers whether it has subject matter jurisdiction to review this case. Mukand asserts that jurisdiction to seek reliquidation is appropriate under 28 U.S.C. § 158 1(i) (20 00). The gover nment con

tends tha t § 1581(i)

jurisdict ion is inap

propria te because Mukand could have brought this action under 28 U.S.C. § 1581(a). Moreover, the government argues that this court lac ks jurisdiction because the liquidation of Mukand’s entries is final under 19 U.S.C. § 1514(a) (2000).Court No. 05-00034 7

I. Mukand could not have initiated this action under 28 U.S.C. § 1581(a).

Under § 1581(a), the Court of I nternational Trade has “exclusive jurisdiction of any civil action commenc ed to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930 [19 U.S.C. § 1515].” 28 U.S.C. § 1581(a). A civil action under § 1515 may commence

after a party

protests a Customs liquidation decision, and receives an allowanc e or deni al of the protest p ursuant t o 19 U.S.C. § 1514. At th e time of C ustoms’ liquidation decisio n, the fol lowing d ecisions were su bject to p rotest: (1) the appraised value of mercha ndise; (2) the classification and rate and amount of duties cha rgeable; (3) all charges or exactions of whateve r character within the jurisdiction of the Se cr et ar y of

th e T re as ur y; (4) the exclusion of merchandise from entry or delivery or

a demand for redelivery to customs c

ustody under an y pr ovision of the customs laws, except a determination appealable under section 1337 of this title; (5) the liquidation or reliquidation of an entry , or reconciliation as to the issues contained therein, or any

modification thereof, (6) the refusal to pay

a claim for drawback; or (7) the r efusal to reliquida te an ent ry under sub section ( d) of section 1520 of this title; 19 U.S.C. § 1514(a). A protest able Custo ms decision is subject to § 1581( a) jurisd iction an d is otherwise “final and conclusive upon all persons.” Id. Here, the government contends that Mukand could have protested this action under 19 U.S.C. § 1514(a)(5), so subject matter jurisdiction is unavailable under 28 U.S.C. § 1581(i).

Subsection 1581(i) is a residual jurisdiction provision, which provides in relevant part, the Court o f Int

ernatio nal Trad

e shall ha ve exclusi

ve jurisd iction of a

ny c ivil action commenced against the United States, its age ncies, or its officers, that arises out of any

law of the United States providing for -- . . . (4) administration and enforcement with respect to the matters r eferred to in . . . subsections (a)–(h) of this section.Court No. 05-00034 8

7 In a dopting t he Trad e Agre ements Ac

t of 1979 ( “1979 Ac

t”), Cong ress inte nded “to distinguish between claims that were subject to protest under 19 U.S.C. § 1514 and judicial review under 28 U.S.C. § 1581(a) on the one hand and cla ims that were subject to § 751 administrative reviews and/or judicial review under 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c) on the other.” Mitsubishi Elecs. Am., Inc. v. United States , 18 CIT 167, 173, 848 F. Supp. 193, 198 (1994 ); see also

H.R. Rep. No. 96-1235, at 44 (1980) (stating that § 1581(a) should not be used to circumvent the exclusive method of judicial review of an antidumping dete rmination listed in section 516A of the Tariff Act of 1930 (19 U.S.C. § 1516a)). Specifica lly, the 1979 Act amended 19 U.S.C. § 1514(a) and (b) to exclude antidumping determinations from the list of matters that parties may

protest to Customs. Mitsubishi Elecs. Am. Inc. v. United States , 44 F.3d 973, 976 (Fed. Cir. 1994).

8 It is also clear that jurisdiction was not available unde r 28 U.S.C. § 1581(c). Section 1581(c) provides the Court of Inte rnational Trade with “exclusive jurisdiction of any civil action commenced under Section 516A of the Tariff Ac t [codified as 19 U.S.C. § 1516a].” Section 516A provides that an interested party may commence

an action to challenge an administrative determination des cribed i n 19 U.S.C. § 1516a(a

)(2)(B ), which

does not pr

ovide an a

venue to challenge Commerce’s failure to comply with the scope ruling requirements of 19 C.F.R. § 351.225. 28 U.S.C. § 1581(i)(4). Litigants may not invoke jurisdiction under § 1581(i) “when jurisdiction under another subsection of § 1581 is or could have been a vailable, unless the remedy provided under that other subsection would be manifestly inadequate.” Miller & Co. v. United States , 824 F.2d 961, 963 (Fed. Cir. 1987).

In the instant ca se, Mukan

d’s chal lenge t

o Commerc e’s comp liance w ith its regulatory

procedures for reviewing scope determinations is not an action available to Mukand under § 1581(a). “Section 1514(a) does not embrac e decisions by other a gencies [besides Cutsoms].” 7 Mitsubishi , 44 F.3d at 976. Commerce is charged with handling antidumping determinations, including scope determinations, and challeng es to those determinations are brought under 28 U.S.C. § 1581(c). 8 Commerce is also charged with administering the f inal results of antidumping determinations, including following its detailed proce dures for scopeCourt No. 05-00034 9

ruling requests under 19 C.F.R. § 351.225. Challenges re lating to its administration of the final results of antidumping duty de terminations may be broug ht under 28 U.S.C. § 1581(i). See Consol. Be arings

Co. v. Unite d States, 348 F.3d 997, 1002 (Fed. Cir. 2003) (“[A]n action challen ging Co mmerce’ s liquidati on instructions is not a challen ge to the final re sults, but a challenge to the ‘administration and enforce ment’ of those final results.”). Once Commerce instructs Customs to liquidate entries, “Customs merely follows Commerce’s instructions in assessing and collecting duties.” Mitsubishi , 44 F.3d at 977. Customs ca

nnot “modi fy

Commerce ’s deter

minations, their und

erly ing fac ts, or the ir enforcement.” Id . (quo ting Royal Bus. Mac hs, Inc. v. United States , 1 CIT 80, 87, 507 F. Supp. 1007, 1014 n.18 (Ct. Int’l Trade 1980)). Customs play s a “merely

ministerial role in liquidating antidumping duties.” Mitsubishi , 44 F.3d at 977.

Here, the government does not alleg e, and the record does not reflect, that Commerce’s instructions provided Customs with any discre tion to exceed its ministerial role. Moreover, the government does not alleg e that Customs erred in its interpretation of the scope of the SSB Order

. Cf. Xerox Corp. v. United States , 289 F.3d 792, 795 (Fed. Cir. 2002) (“[W]here the scope of the an tidumping

duty order is unambig uous and u

ndisputed , and the goods clea rly do not fall within the scope of the order, misapplication of the order by Customs is properly the subject of a protest under 19 U.S.C. § 1514(a)(2).”). The refore, Customs’ implementing decision was not a protestable decision within the meaning of § 1514, and Mukand c ould not have initiated a 28 U.S.C. § 1581(a) action.

Accordingly , the court does not lack subject matter jurisdiction to considerCourt No. 05-00034 10

Mukand’s request for a writ of mandamus under 28 U.S.C. § 1581(i) base d on the availability of an action pursuant to 28 U.S.C. § 1581(a).
II. The court is precluded from reviewing this case by Mukand’s failure to protect its entries from liquid ation. The Fed eral Cir cuit has h eld that a preliminary injunction is appropr iate to prevent liquidation of entries because “[o]nce liquidation occurs, a subsequent decision by the trial court on the merits . . . can have no effect.” Zenith Radio Corp. v. United States , 710 F.2d 806, 810 (Fed. Cir. 1983). Here, Mukand brings a 28 U.S.C. § 1581(i) action to obtain a refund of antidumpin

g duties it paid on im

ports of SSB from UAE

that Comme

rce det erminedpostliquidation to be outside the scope of the SSB Order . The Court concludes that Mukand’s failure to seek injunctive relief prior to the liquidation of its entries of SSB from UAE precludes the Court from exercising subject matter jurisdiction to consider its refund request. See Mitsubishi , 18 CIT at 180, 84 8 F. Supp. at 203 (ho lding tha t “failur e to seek injunctive

relief a gainst liquidation before commencing [an] action . . . precludes [the] Court from exercising jurisdiction under 28 U.S.C. § 1581(I)”), aff’d on alternative grounds , 44 F.3d 973, 977 ; see also SKF USA Inc. v. United States , 316 F. Supp. 2d 1322, 1327 (Ct. Int’l Trade 2004) (“ After an antidumping review determination, if a party ’s entries are liquidated prior to judicial review of the determination and antidumping duties are assessed, any outstanding challenges as to those entries are rendered moot because liquidation, absent e rrors by Commerc e or Customs, places the entries outside the jurisdiction of the court.”)

.

In the instant case, Mukand did not seek a n administrative review for the POR
2000-200 1, and whi le Mukand request ed an ad ministrati ve revie w for the POR 2001-2 002, itCourt No. 05-00034 11

9 When Mukan

d submitted

an answe r, it was t wo months la

te and it d id not spec ifically assert that Mukand’s entries of SSB were outside the scope of the SSB Order

. failed to submit a timely administrative review que stionnaire response as required for participation. 9 The administrative review for the POR 2001-2002 proceede d without Mukand’s particip ation, an

d instead Mukand fo llowed the

procedu re for s ubmitting a scope r uling re quest to Commerce pursuant to 19 C.F.R. § 351.225. Commerce accepted Mukand’s sc ope ruling request on May 14, 2003, but did not initiate a scope inquiry until March 25, 2005. Mukand argues that Commerce was require d to either initiate a scope inquiry or issue a scope determination within 45 days of its scope r uling request. 19 C.F.R. § 351.225(c)(2). Moreover , Mukand asserts that if Commerce had initiated a scope inquiry, it was required to suspend liquidation of entries pending a scope ruling. 19 C.F.R § 351.225(l)( 1).

On August 11, 2003, Commerce published the 2001-2002 Admin. Review Final Results , rejecting Mukand’s argume nt that Commerce was required to consider Mukand’s untimely questionnaire submission before a ssigning an antidumping duty rate. Commerce assigned a total adverse facts a vailable rate of 21.02% to Mukand’s entries, and provided Mukand with notice that it would instruct Customs to liquidate entries and assess duties at the assigned rate. 2001–2002Admin. Rev iew Fina l Results , 68 Fed . Reg. a t 47, 545. A ltho ugh Mukand re ceived n

otice tha t Customs wou

ld liquidat

e its entr ies at the total adv erse fa

cts available rate, Mukand did not take any steps to prevent the liquidation, which occurred on November 14, 2003. Instead, Muka nd waited for Customs to liquidate its entries, then filed a protest with Customs, which was denied.Court No. 05-00034 12 The Court

finds tha t Mukand sh

ould not ha

ve waite d until Custo ms denied its protest to file a § 1581(i) action. Mukand should have filed a § 1581(i) action with this Court as soon as it received notice of the potential liquidation of its entries and obtained injunctive relief against liquidation before Customs liquidated its entries. See Mitsubishi , 18 CIT at 180, 8 48 F. Supp. at 203 (injunctive relief pursuant to 28 U.S.C. § 1581(i) is appropriate where Commerce failed to begin a n administr

ative re view as r equired by 1 9 C.F.R. § 3 53.53a( d)(1)) ; Interredec , Inc . v. Unite d States. , 11 CIT 45, 46 n.1, 652 F. Supp. 1550, 1553 n.1 (1987) (injunctive relief pursuant to 28 U.S.C. § 1581(i) is appropriate to contest Commerce’s refusal to conduct a § 751 review). Mukand argues that it has a right to reliquidation under the Federal Circuit’s decision in Shinyei Corp. of Am. v. United States , 355 F.3d 1297 (Fed. Cir. 2004). I n Shinyei , the plaintiff alleged that Commerce errone ously instructed Customs to liquidate entries contrary to Commerce’s amended final results. Prior to liquidation, the plaintiff brought an action see king a writ of mandamus to obtain immediate liquidation in accordance with the amended f inal results. While the action was pending, Customs liquidated the plaintiff’s entries, and the plaintiff amended its action to seek r eliquida tion of its e

ntries. The cour t held tha t the Court

of In ternational Trad

e is not div ested of

§ 1581(i) subject matter jurisdiction merely by the liquidation of the plaintiff’s entries. Shinyei , 355 F.3d
at 1310. T

he court distingu ished the case fr om Mitsubishi on its facts, as a case where the plaintiff did not sle ep on its r

ights: In the present case, Sh iny ei canno t be described as a party that has s lept on its rights. Rather, S hinyei filed s uit in the Co

urt of I nternat ional Tra de seeki ng a wr it of mandamus ordering liquidation of its entries at the rate it thought it was e ntitledCourt No. 05-00034 13

10 It is not clear from the dec ision in Shinyei how broad the injunction was and whether or not the injunction permanently enjoined a ny liquidation not in accordanc e with the final court decision. to--the lower rate set forth in the Amended Review Results. When its entries wer e liquidated “as entered” pursuant to Commerce' s clean up instruction, Shinyei amended its compla

int and al leged t

hat Commer

ce had f ailed to c omply

with section 1675(a)(2)(B). Id. at 1309–1 0. The co

urt also noted that

the plain tiff had a lready obtained an injunc tion aga

inst liquidation of entries during litigation of a challenge to the final results of an administrative review. 10 Thus, while the court declined to extend the Federal Circuit’s holding in Zenith to actions brought post-liquidation under § 1581(i), Shinyei , 355 F.3d at 1309, it recognized the strong presumption again st reliqui dation of entries w here the plaintiff does not pu

rsue all availab le avenu

es to pre vent the u nnecess ary

liquidation of entr

ies by Customs. The court finds Shinyei ’s dis tinct ion re levan t here, and de cline s to ex tend t he cou rt’s h oldi ng to the fa cts of this

case, w here the Court find s that the p laintiff slept on its

rights, then prot

ested Cust

oms’ liquidation of its entries, before bringing a § 1581(i) a ction. The court relies, in part, on the Federa l Circuit’s recognition in Sandvik of the twin purposes of administrative exhaustion, i.e., protecting administrative agenc y authority

and promoting judicial efficiency

. Sandvik Steel Co. v. United States , 164 F.3d 596, 600 (Fed. Cir. 1998). In Sandvik , the court held that under the doctrine of administrative exhaustion the plaintiff was not entitled to judicial relief for the liquidation of entries purported to be outside the scope of an antidumping order beca use the plaintiff failed to seek a scope ruling r equest pursuant to 19 C.F.R. § 351.225. Here, Mukand filed an application for a scope ruling request, but failedCourt No. 05-00034 14

11 While the Court rests its decision on Mukand’s failure to diligently pursue its injunctive remedies, the Court also recognizes that Mukand did not pursue all of the administrative remedies available to it. Here, Mukand did not seek an administrative review for the POR 2000- 2001, and it was assigned an adverse fa cts available rate for the POR 2001-2002 because it filed an untimely questionnaire re sponse. Mukand addressed this point, arguing that seeking a scope determination through the administrative review process would have been futile be cause Commerce provided 19 C.F.R. § 351.225 as an exclusive administrative procedure for requesting scope rulings. While the Court agrees that the reg

ulation provides a detailed process for filing scope r uling requests, the Court also recognizes that it has long approved the use of the administrative review process as an avenue for challenging

the scope of antidumping duty orders. See Kyowa Ga s Chem. Indus. Co. v. United States , 7 CIT. 138, 140, 582 F. Supp. 887, 889 (1984) (“I t is undisputed that in a § 1675(a) review proceeding the ITA may

clarify the

scope of a prior dumping finding.”). Here, Co mmerce d

id not obje ct to Muka

nd’s purs uit of the s cope rul ing req uest rout e after it failed to pursue the administrative review proce ss. Apparently, both ave nues are available, but only the a

dministrative review route will secure an automatic suspension of liquidation. to seek an injunction pending a Commerce scope ruling , even after it become clear that its entries would be liquidated before Commerce responded. 11

As in Sandvik , the purp ose of pr otecting administr

ative ag ency

authority is particularly a

pplicable to this case because the “[s]ound administration of the antidumping laws counsels that Commerce, which administers those laws, should in the first instance decide whether an antidumping order covers particular products.” Sandvik , 164 F.3d at 600. Here, instead of diligently pursuing a Commerce scope determination, Mukand raise d its scope issue with Customs

in its liquid

ation pro test. More over, the purpose o f judicia

l effici ency

is espec ially appropriate here because Commerc e subsequently dec ided that Mukand’s imports of SSB from UAE were not covered by the SSB Order , so pursuing pre-liquidation remedies would have saved the resources expended by Customs in implementing the antidumping duty order, reviewing the protest, and by this Court in the present litigation. See id. (stating that had theCourt No. 05-00034 15

importers filed for scope determinations, Commerce may have decided the imports were not covered by

the order, thus preventing litigation). Accordingly , the Court concludes that Mukand’s failure to seek injunctive relief before Customs liquidated its entries precludes the Court from exercising § 1581(i) subject matter jurisdiction over its request for reliquidation.
CONCLUSION In light of the fore going, the court finds that Mukand’s request for reliquidation of entries is barred by

its failure to pursue injunctive relief prior to liquidation of its entries. Accordingly , defendant’s motion for summary judgment is granted.

/s/ Jane A. Re stani Jane A. Restani CHIEF JUDGE Dated: New York, New York This 22nd

day of De cember, 2005.