Slip Op. 09-18
UNITED STATES COURT OF INTERNATIONAL TRADE
DESEADO INTERNATIONAL, LTD.,
Plaintiff,
Before: Leo M. Gordon, Judge
v.
Court No. 07-00365
UNITED STATES,
Defendant.
OPINION
[Action dismissed.]
Dated: March 18, 2009
Neville Peterson LLP (John M. Peterson, George W. Thompson, and Casey K.
Richter) for Plaintiff Deseado International, Ltd.
Michael F. Hertz, Deputy Attorney General, Jeanne E. Davidson, Director,
Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, (Michael J. Dierberg, Trial Attorney, and Irene Chen,
Attorney, Office of Chief Counsel for Import Administration, U.S. Department of
Commerce) for Defendant United States.
Barnes & Thornberg, LLP (Randolph J. Stayin and Karen A. McGee) for
Defendant-Intervenor.
Gordon, Judge: This case involves the antidumping duty order on petroleum wax
candles from the People’s Republic of China. See Petroleum Wax Candles from the
People's Republic of China, 51 Fed. Reg. 30,686 (Dep't Commerce Aug. 28, 1986)
(antidumping duty order) (“Order”). In 2005 the United States Department of Commerce
(“Commerce”) initiated an anticircumvention inquiry of the Order and determined that
candles containing less than 50% petroleum wax (“mixed wax candles”) were covered
by the scope of the Order. See Petroleum Wax Candles from the People's Republic of
Court No. 07-00365 Page 2
China, 71 Fed. Reg. 59,075 (Dep't Commerce Oct. 6, 2006) (final determ.
anticircumvention inquiry) (“Anticircumvention Inquiry”), amended by Final Results
Pursuant to court Remand, Target Corp. v. United States, Consol. Court No. 06-00383
(Nov. 10, 2008). Commerce ordered suspension of liquidation for mixed-wax candles
as of the date of the notice of initiation of the Anticircumvention Inquiry. Id.
In August 2006 at Plaintiff’s request, Commerce conducted an administrative
review of the Order for the period August 1, 2005 through July 31, 2006.
See Petroleum Wax Candles from China, 72 Fed. Reg. 52,355 (Sept. 13, 2007) (final
results administrative review) (“Administrative Review”). During the Administrative
Review Plaintiff attempted to challenge the merits of the Anticircumvention Inquiry by
arguing that (1) mixed-wax candles were not covered by the Order and (2) Commerce
should not have suspended liquidation of mixed-wax candles as of the date of the
initiation of the Anticircumvention Inquiry. In response, Commerce declined to
reconsider decisions made during the Anticircumvention Inquiry, a separate and distinct
administrative proceeding. See Issues and Decision Memorandum for Administrative
Review, at cmt. 3 & 4, A-570-504, (Sept. 13, 2007), Admin. R. Public Doc. 58 (“Decision
Memorandum”).1
In the action before the court, Plaintiff again seeks to challenge the merits of the
Anticircumvention Inquiry while not contesting the merits of the administrative review.
1
The Court notes that the traditional avenue for contesting the erroneous inclusion of
one’s merchandise within the scope of an antidumping duty order is a scope
determination pursuant to 19 C.F.R. § 351.225. See Sango Int’l, L.P. v. United States,
484 F.3d 1371, 1376 (Fed. Cir. 2007) (“pursuant to 19 C.F.R. § 351.225(c)(1), an
importer may request a scope ruling as to whether a particular product is covered by an
antidumping order”). Plaintiff chose not to pursue this particular administrative remedy.
Court No. 07-00365 Page 3
Plaintiff though may not challenge the merits of the Anticircumvention Inquiry in this
action because Plaintiff has not satisfied the prerequisites for judicial review for that
separate and distinct administrative proceeding (which are contained in Section
516A(a)(2)(B)(vi) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(vi)
(2000)). Other parties have satisfied those prerequisites and the Anticircumvention
Inquiry is presently being reviewed by the court in the Target case mentioned above.
Suffice it to say, Plaintiff may not collaterally attack the Anticircumvention Inquiry within
this action.
Also, to the extent Plaintiff is, within this action, challenging Commerce’s refusal
to reconsider the Anticircumvention Inquiry, such a refusal is an agency action
committed to agency discretion by law, and is therefore generally unreviewable. See
ICC v. Bhd. of Locomotive Eng'rs, 482 U.S. 270, 282 (1987) (noting that there is a
tradition of nonreviewability associated with refusals to reconsider unless they involve
new evidence or changed circumstances); see also Consolidated Fibers, Inc. v.
United States, 32 CIT ___, 535 F. Supp. 2d 1345 (2008).
Accordingly, the court will enter judgment dismissing this action.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: March 18, 2009
New York, New York