Parkdale International Ltd. v. United States

Slip Op. 08-111

UNITED STATES COURT OF INTERNATIONAL TRADE
______________________________
:
PARKDALE INTERNATIONAL LTD., :
:
Plaintiff, :
: Before: Richard K. Eaton, Judge
v. :
: Court No. 07-00166
UNITED STATES, :
:
Defendant, :
:
and :
:
UNITED STATES STEEL CORP., :
:
Def.-Int. :
______________________________:

OPINION

[Defendant’s and defendant-intervenor’s motions to dismiss
granted.]

Dated: October 20, 2008

Hunton & Williams LLP (William Silverman and Richard P. Ferrin),
for plaintiff.

Gregory G. Katsas, Assistant Attorney General; Jeanne E.
Davidson, Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice (Michael D. Panzera and
Stephen C. Tosini); Office of the Chief Counsel for Import
Administration, United States Department of Commerce (Mark B.
Lehnardt), for defendant.

Skadden, Arps, Slate, Meagher & Flom LLP (Robert E. Lighthizer,
John J. Mangan, Jeffrey D. Gerrish and M. Allison Guagliardo),
for defendant-intervenor.

Eaton, Judge: Before the court are the motions to dismiss

for lack of subject matter jurisdiction of the United States

(“defendant”) and of United States Steel Corporation (“defendant-
Court No. 07-00166 Page 2

intervenor”). See Def.’s Mot. Dismiss (“Def.’s Mot.”); Def.-

Int.’s Mot. Dismiss (“Def.-Int.’s Mot.”). Plaintiff Parkdale

International Ltd. (“Parkdale” or “plaintiff”) has filed

responses to each of the motions. See Pl.’s Resp. Def.’s Mot.;

Pl.’s Resp. Def.-Int.’s Mot. By their motions, defendant and

defendant-intervenor insist that the court does not have

jurisdiction to hear plaintiff’s claims under 28 U.S.C.

§ 1581(i).

For the reasons set forth below, the motions to dismiss are

granted, and plaintiff’s complaint is dismissed.1

BACKGROUND

Parkdale is an importer of corrosion-resistant carbon steel

flat products (“CORE”) from Canada. Compl. ¶ 3. In the early

1990s the United States Department of Commerce (“Commerce” or the

“Department”) issued an antidumping duty order on CORE from

Canada (the “Order”). See Certain CORE and Certain Cut-to-Length

Carbon Steel Plate From Canada, 58 Fed. Reg. 44,162 (Dep’t of

1
The court is familiar with the facts of this case,
having previously enjoined liquidation of the subject
merchandise. See Parkdale Int’l Ltd. v. United States, 31 CIT
__, Slip Op. 07-159 (Oct. 31, 2007) (not reported in the Federal
Supplement). Although the Court in Parkdale International Ltd.
v. United States, 31 CIT at __, Slip Op. 07-159, found
jurisdiction based on the reasoning of Canadian Wheat Board v.
United States, 31 CIT __, 491 F. Supp. 2d 1234 (2007), after full
briefing and oral argument on the pending motions, the court has
reconsidered and now finds that it does not have jurisdiction
pursuant to 28 U.S.C. § 1581(i)(4) to hear Parkdale’s claims.
Court No. 07-00166 Page 3

Commerce Aug. 19, 1993) (antidumping duty order). The Order was

later amended in 1995. See Certain CORE and Certain Cut-to-

Length Carbon Steel Plate From Canada, 60 Fed. Reg. 49,582 (Dep’t

of Commerce Sept. 26, 1995) (amended final determination). On

September 1, 1999, Commerce and the United States International

Trade Commission (“ITC” or the “Commission”) commenced a “sunset

review”2 of the Order and determined, respectively, that its

revocation would likely lead to the continuation or recurrence of

dumping and material injury to the domestic CORE industry.

Thereafter, Commerce published notice of the continuation of the

Order in the Federal Register, which by its terms was effective

2
Administrative reviews, including five-year or “sunset”
reviews, are covered in § 1675 of Title 19 of the United States
Code. Subsection 1675(c) provides the general rule for sunset
reviews:

Notwithstanding subsection (b) of this
section and except in the case of a
transition order defined in paragraph (6), 5
years after the date of publication of—

(A) . . . an antidumping duty order
. . . or

(C) a determination under this
section to continue an order . . .,

[Commerce] and the Commission shall conduct a
review to determine, in accordance with . . .
[19 U.S.C. § 1675a], whether revocation of
the . . . antidumping duty order . . . would
be likely to lead to continuation or
recurrence of dumping . . . and of material
injury.

19 U.S.C. § 1675(c)(1) (2000).
Court No. 07-00166 Page 4

as of December 15, 2000. See Continuation of Antidumping and

Countervailing Duty Orders on Certain Carbon Steel Prods. from

Australia, Belgium, Brazil, Canada, Finland, France, Germany,

Japan, South Korea, Mexico, Poland, Romania, Spain, Sweden,

Taiwan, and the United Kingdom, 65 Fed. Reg. 78,469, 78,470

(Dep’t of Commerce Dec. 15, 2000) (notice).

Five years later, on November 1, 2005, Commerce and the ITC

commenced the second sunset review of the Order. See Initiation

of Five-year (“Sunset”) Revs., 70 Fed. Reg. 65,884 (Dep’t of

Commerce Nov. 1, 2005) (notice). In that review, while Commerce

determined that revocation of the Order would likely result in

the continuation or recurrence of dumping, the ITC determined

that revocation of the Order would not be likely to lead to the

continuation or recurrence of material injury to the domestic

CORE industry within a reasonably foreseeable time. See Certain

Carbon Steel Prods. From Australia, Belgium, Brazil, Canada,

Finland, France, Germany, Japan, Korea, Mexico, Poland, Romania,

Spain, Sweden, Taiwan, and the United Kingdom, 72 Fed. Reg. 4,529

(ITC Jan. 31, 2007) (final determination).3 As a result, the

3
The full text of the ITC’s final determination is
contained in Volumes I and II of Certain Carbon Steel Products
from Australia, Belgium, Brazil, Canada, Finland, France,
Germany, Japan, Korea, Mexico, Poland, Romania, Spain, Sweden,
Taiwan, and the United Kingdom, USITC Pub. 3899, Inv. Nos.
AA1921-197 (Second Rev.); 701-TA-319, 320, 325-327, 348, and 350
(Second Rev.); and 731-TA-573, 574, 576, 578, 582-587, 612, and
614-618 (Second Rev.) (Jan. 2007).
Court No. 07-00166 Page 5

Order was revoked. See 19 U.S.C. § 1675(d)(2); 19 C.F.R.

§ 351.218(a) (2006) (providing for revocation of an order based

on a sunset review if either Commerce’s or the ITC’s

determination is negative); Certain CORE from Australia, Canada,

Japan, and France, 72 Fed. Reg. 7,010 (Dep’t of Commerce Feb. 14,

2007) (notice of revocation) (“Revocation Notice”). In its

Revocation Notice, Commerce stated that “[p]ursuant to [19 U.S.C.

§ 1675(d)(2)] and 19 C.F.R. § 351.222(i)(2)(i), the effective

date of revocation is December 15, 2005 (i.e., the fifth

anniversary of the date of publication in the Federal Register of

the notice of continuation of the [Order]).” Revocation Notice,

72 Fed. Reg. at 7,011.

Parkdale then brought this action, pursuant to the

Administrative Procedure Act, 5 U.S.C. § 702 (2000).4 Parkdale

seeks judicial review of the effective date of the Revocation

Notice and invokes the Court’s residual jurisdiction provision,

28 U.S.C. § 1581(i)(4).5 Compl. ¶¶ 1, 2. Parkdale claims that

4
The Administrative Procedure Act provides that a person
who has suffered a legal wrong or has been “adversely affected or
aggrieved by agency action within the meaning of a relevant
statute,” 5 U.S.C. § 702, may seek judicial review of “final
agency action for which there is no other adequate remedy in a
court . . . .” 5 U.S.C. § 704.
5
Subsection 1581(i)(4) grants this Court exclusive
jurisdiction to entertain “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 . . . (4)
administration and enforcement with respect to the matters
referred to in paragraphs (1)–(3) of this subsection and
Court No. 07-00166 Page 6

the revocation of the Order should have been effective as of

September 26, 2000, i.e., the fifth anniversary of the September

26, 1995 amendment to the Order, not December 15, 2005, as

Commerce found. Compl. ¶ 3.

JURISDICTION AND STANDARD OF REVIEW

A jurisdictional challenge to the court’s consideration of

this action raises a threshold inquiry. See Hartford Fire Ins.

Co. v. United States, 31 CIT __, __, 507 F. Supp. 2d 1331, 1334

(2007) (“Hartford Fire Ins. Co.”) (citations omitted). Thus,

before reaching the merits of plaintiff’s complaint, this court

must assess the motion to dismiss for lack of subject matter

jurisdiction. In deciding a motion to dismiss that does not

challenge the factual basis of plaintiff’s allegations, a Court

“assumes all factual allegations contained in the complaint to be

true and draws all reasonable inferences in plaintiff’s favor.”

Id. at __, 507 F. Supp. 2d at 1335 (citation and alteration

omitted). “Nonetheless, . . . ‘the mere recitation of a basis

for jurisdiction . . . cannot be controlling[;]’ rather, analysis

of jurisdiction requires determination of the ‘true nature of the

action.’” Id., 31 CIT at __, 507 F. Supp. 2d at 1335 (quoting

Norsk Hydro Canada, Inc. v. United States, 472 F. 3d 1347, 1355

subsections (a)–(h) of this section.” 28 U.S.C. § 1581(i)(4)
(2000).
Court No. 07-00166 Page 7

(Fed. Cir. 2006) (citation and quotation omitted)).

DISCUSSION

Parkdale has brought its challenge to the effective date of

the revocation of the Order by claiming jurisdiction under 28

U.S.C. § 1581(i)(4). It is well-settled that § 1581(i)

jurisdiction is only available to plaintiffs where jurisdiction

under another subsection of § 1581 is not or could not have been

available. Miller & Co. v. United States, 824 F. 2d 961, 963

(Fed. Cir. 1987) (“Miller & Co.”). Section 1581(i) jurisdiction

“may not be invoked when jurisdiction under another subsection of

§ 1581 is or could have been available, unless the remedy

provided under that other subsection would be manifestly

inadequate.” Id. at 963.

Defendants and defendant-intervenors (collectively, the

“movants”) argue that the effective date of revocation in a

sunset review proceeding pursuant to 19 U.S.C. § 1675(d)(2) is a

final determination reviewable under 28 U.S.C. § 1581(c).6 The

thrust of the movants’ argument is that Parkdale “could have

participated in the Department’s second sunset review and raised

any arguments regarding the effective date of revocation of the

order in the course of that review.” Def.-Int.’s Mot. 6. They

6
Section 1581(c) grants to this Court “exclusive
jurisdiction of any civil action commenced under” § 1516a. 28
U.S.C. § 1581(c).
Court No. 07-00166 Page 8

contend that, had Parkdale participated in the second sunset

review before Commerce — which it did not — it would have been

able to seek review of Commerce’s determinations under § 1581(c),

in which case it cannot now seek review under § 1581(i).

In addition, the movants argue that plaintiff’s claims must

be dismissed because of a separate failure to meet statutory

requirements for judicial review. Namely, that plaintiff did not

give notice of its intent to seek judicial review under a special

rule covering North American Free Trade Agreement (“NAFTA”)

member countries. Specifically, defendant contends that under 19

U.S.C. § 1516a(g)(3)(B),

a party may challenge a final determination
pursuant to 19 U.S.C. § 1675, only if it has
provided proper notice to the specified
parties in a timely manner. Because Parkdale
did not provide notice in accordance with
section 1516a(g)(3), Parkdale cannot
establish jurisdiction for this Court to
review the Revocation Notice here.

Def.’s Mot. 13 (citation omitted); see also Def.-Int.’s Mot. 10.

I. The Revocation Notice Is a Final Determination

Title 19 U.S.C. § 1675(d)(2) governs the revocation of an

order in a sunset review:

the administering authority [Commerce] shall
revoke a countervailing duty order or an
antidumping duty order or finding, or
terminate a suspended investigation, unless-

(A) the administering authority makes a
determination that dumping or a
Court No. 07-00166 Page 9
countervailable subsidy, as the case may be,
would be likely to continue or recur, and

(B) the Commission makes a determination that
material injury would be likely to continue
or recur as described in section 1675a(a) of
this title.

19 U.S.C. § 1675(d)(2).

Judicial review of unfair trade determinations is governed

by 19 U.S.C. § 1516a(a)(2)(B)(iii), which states that within 30

days of the publication of a “final determination . . . by the

administering authority or the Commission under section 1675 of

this title,” an interested party who is a party to the proceeding

in connection with which the matter arises may commence an action

in this Court by filing a summons. 19 U.S.C.

§ 1516a(a)(2)(B)(iii). In addition, the time for filing a

complaint is tolled for thirty days where, as here, the product

at issue is from a NAFTA country. 19 U.S.C. § 1516a(a)(5)(A).

Defendant argues that, because Commerce issued its

Revocation Notice pursuant to 19 U.S.C. § 1675(d),7 Parkdale’s

challenge to the Revocation Notice was required to be brought

within sixty days of its publication, i.e., by April 16, 2007.

Def.’s Mot. 7; see 19 U.S.C. §§ 1516a(a)(2)(B)(iii) and

(a)(5)(A). Parkdale filed its summons and complaint on May 15,

7
See Revocation Notice, 72 Fed. Reg. 7,010 (“Pursuant to
[19 U.S.C. § 1675(d)(2)] and 19 C.F.R. § 351.222(i)(2)(i), the
effective date of revocation is December 15, 2005 (i.e., the
fifth anniversary of the date of publication in the Federal
Register of the notice of continuation of the [Order]).”).
Court No. 07-00166 Page 10
2007. As such, defendant argues, plaintiff’s suit is untimely.

Def.’s Mot. 7.

Plaintiff responds by citing to Parkdale International Ltd.

v. United States, 31 CIT __, Slip Op. 07-159 (Oct. 31, 2007) (not

reported in the Federal Supplement) (“Parkdale I”), which granted

a preliminary injunction8 in this case. Parkdale I relied, for

purposes of jurisdiction, on the reasoning of Canadian Wheat

Board v. United States, 31 CIT __, 491 F. Supp. 2d 1234 (2007)

(“Canadian Wheat Board I”). Pl.’s Resp. Def.’s Mot. 1; see also

Canadian Wheat Board v. United States, 32 CIT __, Slip Op. 08-112

(Oct. 20, 2008) (“Canadian Wheat Board II”). Canadian Wheat

Board I upheld jurisdiction, pursuant to § 1581(i), for a

challenge to Commerce’s administration and enforcement of a

negative injury determination made by the ITC following a remand

from a NAFTA binational panel.

According to plaintiff, Commerce’s action in calculating the

revocation date pursuant to 19 U.S.C. § 1675(d)(3)9 was taken in

8
The Court of Appeals for the Federal Circuit has held
that “[t]he question of jurisdiction closely affects the
[movant]’s likelihood of success on its motion for a preliminary
injunction.” U.S. Ass’n of Imps. of Textiles & Apparel v. United
States Dep’t of Commerce, 413 F.3d 1344, 1348 (Fed. Cir. 2005).
9
19 U.S.C. § 1675(d)(3) states:

A determination under this section to revoke
an order or finding or terminate a suspended
investigation shall apply with respect to
unliquidated entries of the subject
(continued...)
Court No. 07-00166 Page 11
furtherance of the administration and enforcement of the final

ITC negative determination and thus was not a final determination

within the meaning of § 1516a and therefore was not appealable

under § 1581(c). For plaintiff, Commerce’s action was

the ministerial application of the command of
the statute to revoke the antidumping duty
order pursuant to the relevant sunset review
(in this case, the ITC’s sunset review). The
“date determined by the administering
authority” in this provision simply requires
Commerce to apply mechanically the revocation
date formula it has already devised in its
regulation, 19 C.F.R. § 351.222(i), and does
not require Commerce to solicit comments or
gather data, as it would any proceeding
culminating in a statement that is properly
characterized as a “determination.”

Pl.’s Resp. Def.-Int.’s Mot. 4. In other words, according to

plaintiff, on February 14, 2007, when Commerce published its

Revocation Notice, it did not “‘exercise discretion’ or make a

‘determination,’ but simply applied the mechanical rule devised

in 19 C.F.R. § 351.222(i), albeit incorrectly.” Pl.’s Resp.

Def.-Int.’s Mot. 4-5.10 As such, plaintiff argues:

9
(...continued)
merchandise which are entered, or withdrawn
from warehouse, for consumption on or after
the date determined by the administering
authority.
10
Plaintiff cites to Globe Metallurgical, Inc. v. United
States, 31 CIT __, 530 F. Supp. 2d 1343 (2007) (not published in
the Federal Supplement) (“Globe”), for the proposition that
Commerce’s choice of the effective date of revocation is
ministerial. Pl.’s Resp. Def.’s Mot. 1. While Globe refers to
the act of revocation under § 1675(d)(2) as ministerial, it does
(continued...)
Court No. 07-00166 Page 12
Parkdale had no opportunity to appeal to
correct Commerce’s erroneous ministerial
application of the regulation through the
Section 1581(c) route, because the date of
revocation was not properly a subject of
Commerce’s sunset review, but instead a
subject of Commerce’s revocation notice, a
separate act by Commerce for which Parkdale
had no opportunity to exhaust an administrative remedy.

Pl.’s Resp. Def.-Int.’s Mot. 5. Accordingly, it argues, 1581(c)

judicial review was not available and its only recourse was

pursuing appeal under 1581(i).

Defendant contends that because 19 U.S.C. § 1675(d)(3)

specifically states that revocation is effective “on or after the

date determined by” Commerce, the date of the revocation order

was necessarily a determination made in the course of the sunset

review. Def.’s Reply 3 (emphasis added). In addition, defendant

argues, the “determination of the effective date of revocation in

a sunset review is a discretionary determination made by

Commerce, not a ministerial act.” Def.’s Reply 3. Specifically,

defendant claims, the act of revocation under 19 U.S.C.

§ 1675(d)(2) “by itself, may be ministerial, [but] determination

of the effective date of revocation under section 1675(d)(3) is

not.” Def.’s Reply 3. (comparing 19 U.S.C. § 1675(d)(2),

mandating that Commerce “shall revoke”, with 19 U.S.C.

10
(...continued)
not address the issue of whether the effective date of revocation
is a final determination within the context of § 1675(d)(3). See
Globe, 31 CIT at __, 530 F. Supp. 2d at 1348.
Court No. 07-00166 Page 13
§ 1675(d)(3), noting that revocation is effective “on or after

the date determined by [Commerce]”). For Commerce, the setting

of the revocation date was a final determination under § 1516a,

and thus reviewable only under § 1581(c).

In support of its position, defendant notes that plaintiff

had an opportunity to participate in Commerce’s determination of

the effective revocation date. Defendant claims that,

[w]hen Commerce initiates a sunset review,
Parties should raise any issue they consider
relevant in a response to the initiation. 19
U.S.C. § 1675(d)(3). To ensure that Commerce
has the opportunity to address issues
relevant to interested parties, they must
raise these arguments in their responses [to
the notices of initiation]: the response may
be the only opportunity that they have to
comment.

Def.’s Mot. 9 (citing regulations regarding filing of responses)

(footnote omitted); see also Def.-Int.’s Mot. 6. At the outset

of a sunset proceeding, defendant contends, it is unclear whether

the order will be revoked, but the process for sunset review

determinations requires that “an interested party must address

every issue it considers relevant — including the effective date

of revocation — in its response to initiation.” Def.’s Mot. 9.11

According to defendant, Parkdale was required “to raise any issue

11
Responses to the notice of initiation must include
specific information and arguments relating to the likelihood of
continuance of dumping. 19 C.F.R. § 351.218(d)(3). Parties may
also submit “any other relevant information or argument that the
party would like the Secretary to consider.” 19 C.F.R.
§ 351.218(d)(3)(iv)(B).
Court No. 07-00166 Page 14
with respect to the effective date of a revocation . . . in a

response to” the initiation of the sunset review in order to

bring its challenge to Commerce’s § 1516a final determination in

this Court. Def.’s Mot. 10. Thus, the movants insist, because

plaintiff failed to pursue the remedy available pursuant to 28

U.S.C. § 1581(c), it cannot now bring its complaint under

§ 1581(i). Def.’s Mot. 10; Def.-Int.’s Mot. 4.

The court finds that Commerce’s Revocation Notice was a

final determination pursuant to § 1516a reviewable under

§ 1581(c). As a result, plaintiff cannot seek jurisdiction

pursuant to § 1581(i). See American Air Parcel Forwarding v.

United States, 718 F. 2d 1546, 1549 (1983) (“It is judicially

apparent that where a litigant has access to this court under

traditional means, such as 28 U.S.C. § 1581(a), it must avail

itself of this avenue of approach complying with all the relevant

prerequisites thereto. It cannot circumvent the prerequisites of

1581(a) by invoking jurisdiction under 1581(i). . . .”) (quoting

United States v. Uniroyal, Inc., 687 F. 2d 467, 471 (C.C.P.A.

1982)). Specifically, the court finds plaintiff’s reliance on

the reasoning of Canadian Wheat Board I, 31 CIT at __, 491 F.

Supp. 2d at 1234, misplaced. This is because the Canadian Wheat

Board I decision centered on actions taken by Commerce following

an initial investigation (whose statutory scheme has no provision

relating to revocation or the setting of a date of revocation),
Court No. 07-00166 Page 15
rather than a determination made in the context of a sunset

review (whose statutory scheme specifically provides for Commerce

to determine a date of revocation).

In Canadian Wheat Board I, the ITC issued a negative

material injury determination for imports of Canadian hard red

spring wheat following a NAFTA panel remand of the ITC’s

original, affirmative injury determination. Thereafter, Commerce

published a Timken notice12 and a notice of revocation of the

antidumping and countervailing duty orders. Canadian Wheat Board

I, 31 CIT at __, 491 F. Supp. 2d at 1238.

The notice of revocation specified that Commerce would

instruct Customs and Border Protection to liquidate, without

unfair trade duties, only those imports that entered the United

States after the effective date of the Timken notice. Id. at __,

491 F. Supp. 2d at 1238-39. As a result, entries made prior to

the effective date of the Timken notice would be liquidated with

the unfair trade duties set forth in the antidumping and

countervailing duty orders, even though the foundation of the

orders had been removed. The plaintiff in that case sought

12
Title 19 U.S.C. § 1516a(c)(1) requires that Commerce
publish notice of a Court decision “not in harmony” with an
original agency determination. The same rule applies with a
NAFTA panel decision. See 19 U.S.C. § 1516a(g)(5)(B).
Subsection 1516a(c) was the subject of Timken Co. v. United
States, 893 F. 2d 337, 340 (Fed. Cir. 1990), and notices issued
pursuant to that subsection have come to be known as Timken
notices. See Canadian Wheat Board I, 31 CIT at __, 491 F. Supp.
2d at 1238 n.4.
Court No. 07-00166 Page 16
judicial review of Commerce’s legal conclusion, found in the

notice of revocation, that the Timken notice would only apply

prospectively. Plaintiff also sought a preliminary injunction to

prevent liquidation of the entries, pursuant to 28 U.S.C.

§ 1581(i). Canadian Wheat Board I, 31 CIT at __, 491 F. Supp. 2d

at 1236-37.

In granting the preliminary injunction, the Canadian Wheat

Board I Court held that Commerce’s conclusion, that liquidation

without duties would be prospective only, was reached for the

first time in the notice of revocation and thus was not a

reviewable final determination under 19 U.S.C.

§ 1516a(a)(2)(B)(i). The Court reached this conclusion because

the determination, that liquidation of unliquidated unfair trade

duties would be prospective only, was made outside the context of

the administrative proceedings and resulted in the ITC’s final

negative injury determination. Thus, the Court held, the notice

of revocation was not reviewable under 28 U.S.C. § 1581(c). Id.

at __, 491 F. Supp. 2d at 1241-42.

The court finds that the Notice of Revocation
implemented the ITC’s final determination
that domestic wheat producers were not
injured or threatened with injury by imports
of Canadian [hard red spring] wheat. Thus,
although containing a legal conclusion with
respect to the prospective application of the
revocation, the Notice of Revocation cannot
be categorized as a final affirmative
determination subject to judicial review
under 19 U.S.C. § 1516a(a)(B)(i) and 28
U.S.C. § 1581(c).
Court No. 07-00166 Page 17
Id. at __, 491 F. Supp. 2d at 1243. Consequently, because

jurisdiction under 28 U.S.C. § 1581(c) was not available to the

plaintiff to challenge the notice of revocation, the Canadian

Wheat Board I Court found that jurisdiction under 28 U.S.C.

§ 1581(i) was available to hear the plaintiff’s challenge to

Commerce’s administration and enforcement of the ITC’s negative

injury determination. Id. at __, 491 F. Supp. 2d at 1243.

The primary difference between Canadian Wheat Board I and

the present case is the statutory scheme under which the

respective dates of revocation were reached. In Canadian Wheat

Board I, the notice of revocation was issued by Commerce as the

result of actions wholly outside of the statutes governing

investigations. See 19 U.S.C. §§ 1671, 1673. Importantly, the

statutory provisions for antidumping duty and countervailing duty

investigations (as distinct from those for reviews) do not

contain provisions for revocation of unfair trade orders, let

alone a statutory directive to determine the date of the

revocation. See 19 U.S.C. §§ 1671, 1673.

In contrast, Parkdale is challenging the proper effective

date of the revocation of an order following a sunset review — a

review process whose purpose is to gauge whether an antidumping

duty order should be revoked, and whose statutory provisions

explicitly provide for a determination of the effective date of

revocation. That is, in a sunset review, should Commerce find
Court No. 07-00166 Page 18
that an order should be revoked, it is statutorily directed to

determine the effective date of the revocation under

§ 1675(d)(3). Judicial review is then available under 19 U.S.C.

§ 1516a(a)(2)(B)(iii). See 19 U.S.C. § 1675(d)(3)(providing that

a “determination under this section to revoke an order . . .

shall apply with respect to unliquidated entries of the subject

merchandise which are entered, or withdrawn from warehouse, for

consumption on or after the date determined by [Commerce].”

(emphasis added)); 19 U.S.C. § 1516a(a)(2)(B)(iii) (providing for

review of “a final determination . . . by the administering

authority or the Commission under section 1675 of this title”).

As to plaintiff’s claim that it has not been afforded an

opportunity for judicial review of the revocation date, the case

of Corus Staal BV v. United States, 31 CIT __, 493 F. Supp. 2d

1276 (2007) (“Corus”), is instructive. In Corus, the plaintiff

sought to invoke this Court’s jurisdiction under § 1581(i) in

order to challenge the antidumping duty rate to be applied to its

entries. The plaintiff brought its case after the Department had

rescinded an administrative review based on the withdrawal of the

requests for review. Corus, 31 CIT at __, 493 F. Supp. 2d at

1284-1286. In Corus, the plaintiff had failed to file its own

request for an administrative review. The Corus Court held that

had the plaintiff requested and participated in a review it could

have appealed Commerce’s calculation of the antidumping duty rate
Court No. 07-00166 Page 19
under § 1581(c). Id. at __, 493 F. Supp. 2d at 1285. Because

plaintiff could have utilized § 1581(c), the Court held,

plaintiff could not seek the Court’s review pursuant to

§ 1581(i).

Such is the case here. Parkdale was on notice of the

initiation of the sunset review. It had the opportunity to

present any and all issues regarding revocation, including the

statutorily mandated determination of the revocation’s effective

date. Parkdale chose not to be a participant. Several parties

submitted substantive responses to Commerce in the second sunset

review. Parkdale simply did not take the opportunity it had to

address this issue.

Finally, Commerce’s determination of the effective date of

revocation under § 1675(d) is a discretionary, not a ministerial,

act. See 19 U.S.C. § 1675(d)(3) (revocation effective “on or

after the date determined by” Commerce); Okaya (USA), Inc. v.

United States, 27 CIT 1509, 1511, Slip Op. 03-130 (Oct. 3, 2003)

(“the effective date of revocation [under section 1675(d)(3)] is

within Commerce’s discretion”) (not reported in the Federal

Supplement). That Commerce has reduced its methodology to a

regulation in no way lessens the discretion granted by Congress.

“Interpretation of the regulation must comport with the

antidumping goal of the applicable statutes. . . . A narrow

interpretation of the regulation and the resulting limitation
Court No. 07-00166 Page 20
upon Commerce’s discretion is not consistent with this goal.” Ad

Hoc Committee of AZ-NM-TX-FL Producers of Gray Portland Cement v.

United States, 16 CIT 1008, 1013, 808 F. Supp. 841, 846 (1992)

(“[U]pholding Cemex’s narrow construction of the regulation would

take away Commerce’s ability to adapt to the factual

peculiarities of each case in calculating dumping margins.”).

Because review of the effective date of the revocation of

the Order was available under § 1581(c), plaintiff cannot now

bring its action under § 1581(i) unless the remedy is manifestly

inadequate, a claim that plaintiff does not make. See Miller &

Co., 824 F. 2d at 963. Parkdale’s challenge to the Revocation

Notice is accordingly untimely, as it was not brought within

sixty days of the publication of the final determination. See 19

U.S.C. § 1516a(a)(2)(B)(iii); 19 U.S.C. § 1516a(a)(5)(A).

II. Plaintiff Failed to Give Notice of Its Intent to Seek
Judicial Review

In addition to plaintiff’s failure to file a timely appeal,

dismissal is required because plaintiff failed to follow the

statutory guidelines for seeking judicial review. That is, where

a NAFTA country is part of the proceedings, a party seeking this

Court’s review of a final determination made pursuant to 19

U.S.C. § 1675 must provide timely notice of its intent to seek

such review to specific government officials and all interested
Court No. 07-00166 Page 21
parties in the case. 19 U.S.C. § 1516a(g)(3)(B);13 Def.-Int.’s

Mot. 10; Def.’s Mot. 13 (citing Bhullar v. United States, 27 CIT

532, 543, 259 F. Supp. 2d 1332, 1341 (2003), aff’d on other

grounds, 93 Fed. Appx. 218 (Fed. Cir. 2004)). Parkdale did not

provide such notice, and thus, according to the movants, it

cannot establish jurisdiction for review in this Court.

Plaintiff argues that this “special notice” rule applies

only to a determination described in 19 U.S.C.

§ 1516a(g)(3)(A)(i) or (iv), which in turn only applies to

actions that “otherwise would be reviewable under 19 U.S.C.

§ 1516a(a).” Pl.’s Resp. Def.’s Mot. 3. Because plaintiff

claims its action is being brought under the Administrative

Procedure Act, and not under § 1516a, it argues that it is

13
Such a determination is reviewable only:

if the party seeking to commence review has provided
timely notice of its intent to commence such review to—

(i) the United States secretary and the
relevant FTA Secretary;

(ii) all interested parties who were parties
to the proceeding in connection with which
the matter arises; and

(iii) the administering authority or the
Commission, as appropriate.

Such notice is timely provided if the notice is
delivered no later than the date that is 20 days after
the date described in subparagraph (A) or (B) of
subsection (a)(5) of this section . . . .

19 U.S.C. § 1516a(g)(3)(B).
Court No. 07-00166 Page 22
“exempt from the NAFTA special rule.” Pl.’s Resp. Def.’s Mot. 3.

Despite plaintiff’s contention, the court has found that

this action is a final determination under § 1516a, and thus the

notice rule pursuant to 19 U.S.C. § 1516a(g)(3)(B) applies. See

Desert Glory, Ltd. v. United States, 29 CIT 462, 368 F. Supp. 2d

1334 (2005) (dismissing case for lack of jurisdiction where

plaintiff failed to give notice of intent to seek judicial review

pursuant to 19 U.S.C. § 1516a(g)(3)(B)). Plaintiff did not

provide notice in accordance with the statute and, consequently,

it has failed to abide by the statutory requirements necessary to

establish jurisdiction for review of the Revocation Notice in

this Court.

CONCLUSION

For the foregoing reasons, the court finds that it does not

have jurisdiction to hear Parkdale’s claims under 28 U.S.C.

§ 1581(i)(4). Consequently, this case is dismissed. Judgment

will be entered accordingly.

/s/ Richard K. Eaton
Richard K. Eaton

Dated: October 20, 2008
New York, New York