Mittal Steel Galati S.A. v. United States

Slip Op. 07-73
UNITED STATES COURT OF INTERNATIONAL TRADE

MITTAL STEEL GALATI S.A.,
FORMERLY KNOWN AS
ISPAT SIDEX S.A.,

Plaintiff,
Before: Leo M. Gordon, Judge
v.
Court No. 06-00050
UNITED STATES,

Defendant.

OPINION

[Plaintiff’s motion for judgment on the agency record denied; Commerce’s administrative
review results sustained.]

Dated: May 14, 2007

Arent Fox Kintner Plotkin & Kahn, PLLC (John M. Gurley, Diana Dimitriuc Quaia) for
Plaintiff Mittal Steel Galati S.A., formerly known as Ispat Sidex S.A.

Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia
M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (David F. D’Alessandris); and Office of Chief Counsel for Import
Administration, U.S. Department of Commerce (Arthur D. Sidney), of counsel, for
Defendant United States.

Wiley Rein & Fielding (Alan H. Price, Timothy C. Brightbill) for Defendant-Intervenor
Nucor Corporation.

Schagrin Associates (Roger B. Schagrin, Michael J. Brown) for Defendant-Intervenor
IPSCO Steel Inc.

Gordon, Judge: Plaintiff Mittal Steel Galati S.A. challenges two decisions of the

U.S. Department of Commerce (“Commerce”) during the 2003-2004 administrative review

of the antidumping duty order covering certain cut-to-length carbon steel plate from

Romania. See Certain Cut-to-Length Carbon Steel Plate from Romania, 71 Fed. Reg.
Court No. 06-00050 Page 2

7,008 (Dep’t of Commerce Feb. 10, 2006) (final results and partial rescission) (“Final

Results”). First, Plaintiff contends that Commerce erred in assigning Plaintiff a total

adverse facts available rate of 75.04 percent ad valorem. Second, Plaintiff contends that

Commerce’s policy of issuing liquidation instructions within 15 days of the publication of the

final results of an administrative review is per se unlawful.

The court has jurisdiction to review Plaintiff’s first issue pursuant to

Section 516a(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C.

§ 1516a(a)(2)(B)(iii) (2000)1 and 28 U.S.C. § 1581(c) (2000). The court has jurisdiction to

review Plaintiff’s second issue under the same jurisdictional provision, or alternatively,

under 28 U.S.C. § 1581(i) (2000).

As discussed further below, Plaintiff’s total adverse facts available rate of

75.04 percent is supported by substantial evidence and is in accordance with law. Also,

Commerce’s 15-day liquidation instruction policy is in accordance with law. The court

therefore sustains Commerce’s Final Results and denies Plaintiff’s motion for judgment on

the agency record.

II. Standard of Review

When reviewing Commerce’s administrative review final results under 28 U.S.C.

§ 1581(c) (2000), the Court of International Trade sustains Commerce’s determinations,

findings, or conclusions unless they are “unsupported by substantial evidence on the

record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More

specifically, when reviewing whether Commerce’s actions are unsupported by substantial

1
Further citations to the Tariff Act of 1930 are to the relevant provision in Title 19 of the
U.S. Code, 2000 edition.
Court No. 06-00050 Page 3

evidence, the Court assesses whether the agency action is “unreasonable” given the

record as a whole. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350-51 (Fed. Cir.

2006). When reviewing Commerce’s actions under 28 U.S.C. § 1581(i), the Court holds

unlawful an agency action found to be “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2000); 28 U.S.C. § 2640(e)

(2000).

III. Discussion

A. Adverse Facts Available Rate

In the preliminary results of the administrative review, Commerce calculated an

antidumping duty rate of 48.90 percent ad valorem for Plaintiff. Certain Cut-to-Length

Carbon Steel Plate from Romania, 70 Fed. Reg. 53,333, 53,338 (Dep’t of Commerce

Sept. 8, 2005) (preliminary results) (“Preliminary Results”). After the Preliminary Results,

Plaintiff informed Commerce that it discovered a significant quantity of subject merchandise

that it failed to report in the administrative review, but Plaintiff did not disclose the quantity

or value of the unreported subject merchandise. Shortly after this revelation, Plaintiff

abruptly curtailed its participation in the proceeding by foregoing a scheduled cost

verification and removing its business proprietary data from the record. Final Results,

71 Fed. Reg. at 7,010.

In the Final Results Commerce found that Plaintiff had both withheld information and

significantly impeded the administrative review, requiring Commerce to use facts otherwise

available to complete the review. Id. Commerce also found that Plaintiff had failed to

cooperate by not acting to the best of its ability to comply with a request for information,
Court No. 06-00050 Page 4

justifying application of adverse facts available. Id. at 7,011. Plaintiff does not challenge

these findings. See Pl.’s Mot. J. Agency R. at 10. Plaintiff instead challenges the 75.04

percent rate that Commerce selected and assigned as total adverse facts available.

Id. at 11.

In a total adverse facts available scenario, Commerce may not be able to calculate

an antidumping rate for the uncooperative respondent because the information required for

such a calculation (the respondent’s sales and cost information for the subject merchandise

during the period of review) typically is not available or has not been provided. As a

substitute, Commerce relies on the petition, the final determination from the investigation,

prior administrative reviews, or other information placed on the record, 19 U.S.C.

§ 1677e(b), to select a proxy that should be a “reasonably accurate estimate of the

respondent’s actual rate, albeit with some built-in increase intended as a deterrent to non-

compliance.” F.lli de Cecco di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d

1027, 1032 (Fed. Cir. 2000) (“de Cecco”).

Among the rates available to Commerce in the administrative proceeding were the

48.90 percent rate calculated for Plaintiff in the Preliminary Results and the

75.04 percent all others rate that was derived from the petition when Romania was a non-

market economy.2 In the Final Results Commerce reasoned that any adverse facts

available rate for Plaintiff needed to be higher than 48.90 percent. Issues and Decision
2
See Certain Cut-to-Length Carbon Steel Plate from Romania, 58 Fed. Reg. 37,209 (Dep’t
of Commerce Jul. 9, 1993) (final determination). Commerce reclassified Romania as a
market economy for antidumping and countervailing duty proceedings effective January 1,
2003. Certain Small Diameter Carbon and Alloy Seamless Standard, Line, and Pressure
Pipe from Romania, 68 Fed. Reg. 12,672, 12,673 (Dep’t of Commerce Mar. 17, 2003) (final
results).
Court No. 06-00050 Page 5

Memorandum for Administrative Review of Certain Cut-to-Length Carbon Steel Plate from

Romania, at 15-16, A-485-803, ADR: 08/01/2003--07/31/2004 (Feb. 6, 2006), available at

http://ia.ita.doc.gov/frn/summary/romania/E6-1880-1.pdf, (“Decision Memorandum”). That

rate was a cooperative rate—Plaintiff’s non-compliance occurred after it was calculated,

and Commerce inferred that Plaintiff’s actual rate was therefore higher than 48.90 percent.

See Decision Memorandum at 10-11 (“an adverse inference is warranted”). Commerce

also believed that a rate higher than 48.90 percent would serve as a deterrent to Plaintiff’s

future non-compliance. See Final Results, 71 Fed. Reg. at 7011. These conclusions are

both reasonable and consistent with the adverse facts available provision of the

antidumping statute and the Federal Circuit’s guidance in de Cecco. The only rate higher

than 48.90 percent was the all-others rate of 75.04 percent, which Commerce first

corroborated and then assigned to Plaintiff. Id.

Plaintiff first contends that the statutory provisions governing non-market economy

calculations prohibit the assignment of a non-market economy rate within a subsequent

market economy proceeding. See Pl.’s Mot. J. Agency R. at 11-16; Pl.’s Reply Br. at 3-4

(citing 19 U.S.C. § 1677b(c)(1)). The court reviews disputed interpretations of the

antidumping statute under the framework provided in Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842-45 (1984). The court first considers whether

Congressional intent on the issue is clear, and if not, whether Commerce’s interpretation is

reasonable. Id.; Dupont Teijin Films USA, LP v. United States, 407 F.3d 1211, 1215 (Fed.

Cir. 2005).
Court No. 06-00050 Page 6

Here, Congressional intent is clear. The express language of the adverse facts

available provision authorizes Commerce to rely on information from the petition

irrespective of whether that information is from a market or non-market economy

proceeding. See 19 U.S.C. § 1677e(b). When operating in an adverse facts available

situation, Commerce needs access to additional sources of information to complete the

administrative review. Plaintiff’s proposed interpretation would limit the available pool of

information on which Commerce may rely, contrary to the purpose of the adverse facts

available provision. Therefore, Commerce may, in a market economy proceeding, assign

to a respondent a total adverse facts available rate derived from a prior,

non-market economy proceeding. Whether Commerce should commingle a non-market

economy rate with a market economy proceeding does not go to the question of whether

Commerce acted in accordance with law, but to whether that action is reasonable given the

facts and circumstances presented by the administrative record—that is—whether it is

supported by substantial evidence.

Plaintiff next argues that Commerce, in practice, eschews adverse facts available

rates derived solely from the petition in favor of rates that have been calculated with

respondent information, and that Commerce’s administrative precedents preclude it as a

matter of law from relying solely on petition information for an adverse facts available rate.

Pl.’s Reply Br. at 7-8; Pl.’s Mot. J. Agency R. at 16-17.3 This is an odd assertion because

the statute explicitly authorizes Commerce to rely on petition information in adverse facts

3
Plaintiff cites NSK Ltd. v. United States, 27 CIT 56, 103, 245 F. Supp. 2d 1335, 1373
(2003); Kompass Food Trading Int’l v. United States, 24 CIT 678, 684 (2000); and
Shanghai Taoen Int’l Trading Co., Ltd. v. United States, 29 CIT __, 360 F. Supp. 2d 1339
(2005).
Court No. 06-00050 Page 7

available situations. See 19 U.S.C. § 1677e(b); de Cecco, 216 F.3d at 1032 (“the statute

explicitly allows for use of ‘the petition’ to determine relevant facts when a respondent does

not cooperate”). Plaintiff nevertheless suggests that Commerce no longer has that

authority, purportedly abandoning it through administrative practice. Pl.’s Reply Br. at 7-8.

In actuality, Commerce has not so limited itself. See, e.g., Stainless Steel Bar from India,

69 Fed. Reg. 55,409, 55,410 (Dep’t of Commerce Sept. 14, 2004) (final results) (using

petition rate). A fair reading of the adverse facts available precedents cited by Plaintiff (in

which Commerce opted for a rate other than a petition rate) simply demonstrate Commerce

exercising its “discretion to choose which sources and facts it will rely on to support an

adverse inference when a respondent has been shown to be uncooperative . . . [to] create

the proper deterrent to non-cooperation . . . and assure a reasonable margin.” de Cecco,

216 F.3d at 1032. The more relevant question is not whether Commerce’s administrative

precedents preclude Commerce as a matter of law from relying on an adverse facts

available rate derived solely from petition information—they do not—but the extent to which

they inform the reasonableness of Commerce’s selection of such a rate.

Standing alone, a 12-year old petition rate from a non-market economy proceeding

may not seem to be an appropriate proxy for a market economy dumping margin. In the

context of the Final Results, however, the assigned rate is a reasonable, if not correct,

choice. As already noted, Plaintiff received a cooperative 48.90 percent rate in the

Preliminary Results. Afterwards, Plaintiff disclosed that it failed to report subject

merchandise, declined to participate in a scheduled cost verification, and removed all of its

proprietary information from the administrative record. Plaintiff’s conduct led Commerce to
Court No. 06-00050 Page 8

infer that Plaintiff’s actual dumping rate was higher than 48.90 percent. Exactly how much

higher is not ascertainable because Plaintiff removed its sales and cost data from the

record. Ideally, the proxy rate selected for Plaintiff should be a “reasonably accurate

estimate of the respondent’s actual rate,” (something higher than 48.90 percent), “with

some built-in increase intended as a deterrent to non-compliance.” de Cecco, 216 F.3d at

1032. When viewed in this light, the 75.04 percent rate seems not only reasonable, but a

logical and appropriate choice.

The only remaining consideration is the reasonableness of Commerce’s

corroboration of the rate pursuant to 19 U.S.C. § 1677e(c). The statute’s corroboration

requirement provides that if Commerce relies upon secondary information, Commerce

"shall, to the extent practicable, corroborate that information from independent sources that

are reasonably at [its] disposal." 19 U.S.C. § 1677e(c). The statute does not prescribe any

methodology for corroborating secondary information, but the Statement of Administrative

Action explains that “corroborate” means that Commerce should satisfy itself that any

secondary information used has “probative value.” See Uruguay Round Agreements Act

Statement of Administrative Action, H.R. REP. NO. 103-316, vol. 1 at 870 (1994), reprinted

in 1994 U.S.C.C.A.N. 3773, 4199. Commerce assesses the probative value of secondary

information by examining the reliability and relevance of the information to be used. See

Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, Singapore, and the

United Kingdom, 70 Fed. Reg. 54,711, 54,712-13 (Sept. 16, 2005) (final results).

Plaintiff alleges in its opening brief that Commerce’s corroboration efforts were not

reasonable because the 75.04 percent rate was calculated in 1992 using a non-market
Court No. 06-00050 Page 9

economy methodology, and is therefore outdated, unreliable, aberrational, and irrelevant.

See Pl.’s Mot. J. Agency R. at 17-28. These arguments are unpersuasive, though,

because Plaintiff fails to acknowledge the cooperative 49.80 percent margin that Plaintiff

received in the Preliminary Results. See Id. Indeed, it is not until its reply brief that Plaintiff

begins to address the meaning and import of this central fact from the administrative

record. See Pl.’s Reply Br. at 5-6, 7, 14.

Contrary to Plaintiff’s claims, Commerce’s corroboration of the 75.04 percent rate

was reasonable. Commerce transferred documentation from the record in the 2002-2003

administrative review which contained both market economy and non-market economy data

specific to Plaintiff. See Total Adverse Facts Available and Corroboration Memorandum for

Company Rate for Administrative Review of Certain Cut-to-Length Carbon Steel Plate from

Romania, at 6, A-485-803, ADR: 08/01/2003--07/31/2004 (Feb. 6, 2006) (“Corroboration

Memo”) (Pub. R. 143).4 In comparing the 75.04 percent rate with Plaintiff’s data from the

previous administrative review, Commerce found the rate conservative because there were

sales exceeding 75.04 percent rate, and there were sales below that rate but within a ten

percent range. Id. at 7. Commerce reasonably concluded that these rates were

“sufficiently approximate to the 75.04 percent, to establish the reliability of the 75.04

percent rate to be used as the adverse facts available rate.” Id.5 See Ta Chen Stainless

Steel Pipe, Inc., v. United States, 298 F.3d 1330, 1339-40 (Fed. Cir. 2002) (“Commerce

4
The public version of the administrative record is cited as “Pub. R.”
5
Commerce went further and provided a detailed analysis of its corroboration of the
secondary information concerning export price and normal value. See Corroboration
Memo at 7-8.
Court No. 06-00050 Page 10

acts within its discretion so long as the rate chosen has a relationship to the actual sales

information available.”)

Relying on Shandong Huarong General Group Corp. v. United States, 29 CIT ___,

Slip. Op. 05-129 (Sept. 27,, 2005) and Am. Silicon Techs. v. United States, 26 CIT 1216,

240 F. Supp. 2d 1306 (2002), Plaintiff argues that Commerce’s use of transaction-specific

margins in corroborating the 75.04 percent rate was unreasonable. See Pl.’s Mot. J.

Agency R. at 23-28. Those decisions, though, are factually dissimilar from this case. In

Am. Silicon the highest transaction-specific margin relied on by Commerce in selecting an

adverse facts available rate was 25 percent lower than the rate selected. Likewise, in

Shandong Huarong not one of the transaction-specific margins relied on by Commerce was

as high as the adverse facts available rate selected. Here, on the other hand, Commerce

relied on sales margins that exceeded 75.04 percent as well as sales with a calculated

margin within a ten percent range of the AFA rate. Corroboration Memo at 7.

To the extent the corroboration provision is designed to provide respondents with an

incentive to cooperate while avoiding the imposition of punitive, aberrational, or

uncorroborated margins, see de Cecco, 216 F.3d at 1032, Commerce’s corroboration

analysis of the 75.04 percent rate satisfied that framework here. In sum, Plaintiff’s total

adverse facts available rate of 75.04 percent is supported by substantial evidence and is in

accordance with law.

B. Liquidation Instruction Policy

Plaintiff also presents a facial challenge to Commerce’s policy of issuing liquidation

instructions to United States Customs and Border Protection (“Customs”) within 15 days of
Court No. 06-00050 Page 11

publication of the final results of an administrative review in the Federal Register. See

http://ia.ita.doc.gov/download/liquidation-announcement.html (Aug. 9, 2002).

The Court of International Trade’s recent decision in SKF USA Inc. v. United States,

31 CIT __, Slip Op. 07-43 (Mar. 23, 2007) (“SKF”) requires a brief discussion of jurisdiction

before turning to the merits. In SKF the court held that 28 U.S.C. § 1581(i) (2000), and not

28 U.S.C. § 1581(c) (2000), is the correct jurisdictional basis for a claim like Plaintiff’s

because the agency action—issuing liquidation instructions—is technically not part of the

final results of the administrative review and therefore not covered by 19 U.S.C.

§ 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c) (2000). SKF at 6-8. In this case though,

Plaintiff challenged Commerce’s liquidation instruction policy during the administrative

review, and Commerce squarely addressed Plaintiff’s claim in the Decision Memorandum.

One could argue that the matter was therefore included within the Final Results of the

administrative review and covered by 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C.

§ 1581(c) (2000). See, e.g., Am. Signature, Inc. v. United States, 31 CIT__, 477 F. Supp.

2d 1281 (2007) (holding that section 1581(c) is proper jurisdictional basis to review issue

that Commerce addressed in administrative proceeding). The parties do not dispute that

section 1581(c) is a proper jurisdictional basis.

However vexing this jurisdictional question may be, it is largely academic in this case

because the Court of International Trade ultimately has jurisdiction to hear the claim,

whether under section 1581(c) or 1581(i). And although these jurisdictional provisions
Court No. 06-00050 Page 12

have different standards of review,6 Plaintiff’s claim is reviewed identically under each; it

involves a question of law requiring statutory interpretation and the possible application of

Chevron, 467 U.S. at 842-45.

Defendant argues somewhat half-heartedly that the matter is non-justiciable, making

general assertions that Plaintiff has “not been injured and no remedy is available,” and that

Plaintiff’s claims are merely “speculative.” Def.’s Resp. Mot. J. Agency R. at 21-22. The

court disagrees. Plaintiff’s facial challenge to the lawfulness of the liquidation instruction

policy is appropriate for judicial review. See SKF at 9-12.

On the merits, Plaintiff contends that Commerce may not issue liquidation

instructions within the combined 60-day period established by section 1516a(a)(2)(A) for

commencing an action in the Court of International Trade (30 days to file a summons, and

30 days thereafter to file a complaint). See Pl.’s Mot. J. Agency R. at 33-35. Plaintiff

argues that if Commerce does, then entries subject to the administrative review could be

liquidated before an interested party perfected its cause of action and obtained an

injunction against liquidation. Id. This would moot one’s claim challenging assessed duties

for subject entries. See Mukand Int’l Ltd. v. United States, 30 CIT __, __, 452 F. Supp. 2d

1329, 1333-34 (2006) (citing Zenith Radio Corp. v. United States, 710 F.2d 806, 810 (Fed.

Cir. 1983); Ugine & Alz Belgium v. United States, 452 F.3d 1289, 1291-92 (Fed. Cir. 2006)).

6
For actions governed by section 1581(c) and 19 U.S.C. § 1516a(a)(2)(B)(iii), the court
reviews Commerce’s determinations under the “substantial evidence” and “in accordance
with law” standard. 19 U.S.C. § 1516a(b)(1)(B)(i). For actions governed by section 1581(i),
the court reviews Commerce’s actions under the “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law” standard. 5 U.S.C. § 706(2)(A) (2000);
28 U.S.C. § 2640(e) (2000).
Court No. 06-00050 Page 13

To support its claim, Plaintiff cites Tianjin Mach. Imp. & Exp. Corp. v. United States,

28 CIT __, 353 F. Supp. 2d 1294 (2004), which states:

On its face, then, § 1516a(2)(A) allows a plaintiff to wait thirty days before
filing its summons, and to wait an additional thirty days before filing its
complaint. The fact that a party could file both its summons and complaint
within fifteen days is immaterial. Because Commerce's fifteen-day liquidation
policy directly contravenes the time frame established by § 1516a(2)(A) for
filing a summons and a complaint, the Court finds that Commerce's new
policy is not in accordance with law.

Tianjin, 28 CIT at __, 353 F. Supp. 2d at 1309 (emphasis in original).

Tianjin, in effect, reads an implied stay of liquidation into section 1516a. In Mukand

this judge read the applicable statutes differently and concluded that the statutory

framework “does not administratively suspend or automatically stay liquidation following the

final results of an administrative review while an interested party decides whether or not to

commence an action or move for an injunction.” Mukand, 30 CIT at __, 452 F. Supp. 2d at

1334. As Mukand explained:

[The statute] provides that the Court of International Trade “may enjoin
the liquidation of some or all entries . . . covered by a determination of
[Commerce] . . . , upon a request by an interested party for such relief and a
proper showing that the requested relief should be granted under the
circumstances.” 19 U.S.C. § 1516a(c)(2) (emphasis added). The statute
further provides that “[u]nless such liquidation is enjoined by the court,”
entries “shall be liquidated in accordance with the determination of
[Commerce] . . . ,” 19 U.S.C. § 1516a(c)(1) (emphasis added), which
Customs carries out “promptly and, to the greatest extent practicable, within
90 days” after Commerce issues instructions. 19 U.S.C. § 1675(a)(3)(B).
Congress therefore placed the responsibility on interested parties to act
affirmatively and request an injunction.

Id. (emphasis in original).

Moreover, the antidumping statute expressly authorizes Commerce to issue

liquidation instructions following an administrative review, but does not prescribe a
Court No. 06-00050 Page 14

schedule or methodology for doing so. See 19 U.S.C. § 1675(a)(3)(B). There is therefore

a gap in the statute that Congress left for Commerce to fill. See, e.g., Viraj Group v. United

States, 476 F.3d 1349, 1357-58 (Fed. Cir. 2007) (applying Chevron, 467 U.S. at 844).

Commerce filled the gap by issuing a policy statement on August 9, 2002, notifying

interested parties that Commerce intends to issue liquidation instructions within 15 days of

publication of the final results of review in the Federal Register. For five years Commerce

has consistently notified interested parties of the policy in the final results of administrative

reviews.

Commerce has a number of factors to consider when issuing liquidation instructions.

Instructions need to be transmitted to Customs in a timely manner because entries

remaining unliquidated on the six-month anniversary of the Federal Register publication

date are deemed liquidated at the rate asserted at the time of entry. See Int’l Trading Co.

v. United States, 281 F.3d 1268, 1272-73 (Fed. Cir. 2002). Also, because Customs “has a

merely ministerial role in liquidating antidumping duties,” Mitsubishi Elecs. Am., Inc. v.

United States, 44 F.3d 973, 977 (Fed. Cir. 1994), the onus is on Commerce to transmit

correct liquidation instructions to Customs.

For now, the court cannot say that Commerce’s gap-filling is unreasonable, and

accordingly, Plaintiff’s facial challenge to the 15-day liquidation instruction policy must fail.

That said, the policy is not without its flaws. As Commerce and Customs continue to

improve the efficiency and automation of the liquidation process, there exists the possibility

Commerce and Customs may “act so quickly,” Int'l Trading, 281 F.3d at 1273, as to

practically foreclose interested parties from obtaining judicial review of subject entries
Court No. 06-00050 Page 15

pursuant to 19 U.S.C. § 1516a, and such a foreclosure would render Commerce’s policy

unreasonable. Just how quickly is too quickly will unfortunately have to be sorted out on a

case by case basis. In Mukand, for example, the entries were liquidated 75 days after

publication of the final results in the Federal Register, and the court ruled as a matter of law

that Commerce (and Customs) had not acted too quickly. Mukand, 30 CIT at __, 452 F.

Supp. 2d at 1334.

Admittedly, the policy and its potential threat of rapid liquidation leaves interested

parties contemplating suit in the Court of International Trade in a difficult situation. The lack

of certainty of when liquidation will occur,7 coupled with the rule that liquidation moots a

challenge to the assessed rates of the subject entries,8 practically, if not necessarily,

requires interested parties to file a protective summons, complaint, and motion for a

preliminary injunction against liquidation almost immediately after publication of the final

results in the Federal Register, and also obtain a temporary restraining order (“TRO”)

against liquidation pending the Court of International Trade’s issuance of a preliminary

injunction.

7
Commerce does not notify interested parties when liquidation instructions are actually
issued. They can be issued as soon as the Federal Register notice is published or as late
as 15 days thereafter, or sometime beyond the 15-day period if Commerce ignores its
policy, see, e.g., Mukand, 30 CIT at __, 452 F. Supp. 2d at 1332-33. The instructions are
communicated electronically to Customs and are not publicly available. Once Customs
receives the instructions, Customs is supposed to liquidate “promptly and, to the greatest
extent practicable, within 90 days.” 19 U.S.C. § 1675(a)(3)(B). The only formal notice
interested parties receive regarding liquidation of their entries is the general blurb in the
final results that Commerce intends to issue liquidation instructions within 15 days, and the
subsequent bulletin notice from Customs once liquidation occurs, 19 C.F.R. § 159.9(a)
(2006).
8
See Zenith Radio Corp., 710 F.2d at 810; Ugine & Alz Belgium, 452 F.3d at 1291-92.
Court No. 06-00050 Page 16

Aware of this predicament, the court in Mukand proposed a minor augmentation to

Commerce’s liquidation policy that might prevent judicial review of antidumping

administrative reviews from devolving unnecessarily into a TRO-based practice:

Commerce can issue instructions that direct Customs to liquidate no earlier
than (1) the date that is 90 days after the Federal Register publication date,
and no later than (2) the six-month anniversary of that publication date unless
liquidation is enjoined pursuant to court order.

Mukand, 452 F. Supp. 2d at 1334-35. This though remains unsolicited advice. Commerce

has the gap-filling discretion (bounded by the requirement of reasonableness), and it is

ultimately for Commerce to decide whether a review and possible revision of its liquidation

instruction policy would be worthwhile.

IV. Conclusion

The court denies Plaintiff’s motion for judgment on the agency record and will enter

judgment in favor of Defendant sustaining Commerce’s Final Results.

/s/ Leo M. Gordon
Judge Leo M. Gordon

Dated: May 14, 2007
New York, New York
 UNITED STATES COURT OF INTERNATIONAL TRADE

MITTAL STEEL GALATI S.A.,
FORMERLY KNOWN AS
ISPAT SIDEX S.A.,

Plaintiff,
Before: Leo M. Gordon, Judge
v.
Court No. 06-00050
UNITED STATES,

Defendant.

JUDGMENT

This case having been submitted for decision, and the court, after due deliberation,

having rendered an opinion; now in conformity with this opinion, it is hereby

ORDERED that Plaintiff’s motion for judgment on the agency record is denied; and it

is further

ORDERED that judgment is entered for Defendant.

/s/ Leo M. Gordon
Judge Leo M. Gordon

Dated: May 14, 2007
New York, New York