Parkdale International, Ltd. v. United States

SLIP OP. 07-72

UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________
:
PARKDALE INTERNATIONAL, LTD., :
RIVERVIEW STEEL CO., LTD., and :
SAMUEL, SON & CO., LTD., :
:
Plaintiffs, :
: Before: Jane A. Restani, Chief Judge
and :
: Court No. 06-00289
RUSSEL METALS EXPORT, :
:
Plaintiff-Intervenor, :
:
v. :
:
UNITED STATES, :
:
Defendant. :
____________________________________:

OPINION

[Plaintiffs’ and plaintiff-intervenor’s motions for preliminary injunctions denied.]

Dated: May 11, 2007

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

Sharretts, Paley, Carter & Blauvelt, PC (Beatrice A. Brickell and Peter J. Baskin) for the
plaintiff-intervenor.

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 S. Silverbrand); Office of the Chief Counsel for Import Administration, U.S.
Department of Commerce (Mark B. Lehnardt), of counsel, for the defendant.

Restani, Chief Judge: This case is before the court on plaintiffs Parkdale

International, Ltd., Riverview Steel Co., Ltd., and Samuel, Son & Co., Ltd.’s, and plaintiff-
Court No. 06-00289 Page 2

intervenor Russel Metals Export’s (collectively, “plaintiffs”) motions for preliminary injunctions

to prevent the liquidation of certain entries of goods.1

Plaintiffs are importers and exporter-resellers of certain corrosion-resistant carbon

steel flat products from Canada that are covered by an antidumping duty order. See Certain

Corrosion-Resistant Carbon Steel Flat Prods. & Certain Cut-to-Length Carbon Steel Plate from

Canada, 58 Fed. Reg. 44,162, 44,162 (Dep’t Commerce Aug. 19, 1993) (antidumping duty

order). Plaintiffs seek liquidation or reliquidation of entries from a two-year period commencing

on August 1, 2003, and ending on July 31, 2005. Plaintiffs claim they are entitled to liquidation

at their producer’s deposit rate under the “automatic liquidation rule,” 19 C.F.R.

§ 351.212(c)(1),2 because the entries at issue were not the subject of periodic administrative

1
Liquidation is the “final computation or ascertainment of duties . . . accruing upon
entry” of the goods. Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1351 (Fed. Cir.
2006) (quotation omitted).
2
The regulation at issue reads in relevant part:

(1) If the Secretary does not receive a timely request for an
administrative review of an order (see paragraph (b)(1), (b)(2), or
(b)(3) of § 351.213), the Secretary, without additional notice, will
instruct the Customs Service to:

(i) Assess antidumping duties or countervailing duties, as the
case may be, on the subject merchandise described in § 351.213(e)
at rates equal to the cash deposit of, or bond for, estimated
antidumping duties or countervailing duties required on that
merchandise at the time of entry, or withdrawal from warehouse,
for consumption; and

(ii) To continue to collect the cash deposits previously ordered.

(2) If the Secretary receives a timely request for an administrative
(continued...)
Court No. 06-00289 Page 3

review proceedings and, therefore, did not receive specific reseller rates. See Certain

Corrosion-Resistant Carbon Steel Flat Prods. from Canada, 71 Fed. Reg. 13,582, 13,583 (Dep’t

Commerce Mar. 16, 2006) (final results of antidumping duty administrative review); Certain

Corrosion-Resistant Carbon Steel Flat Prods. from Canada, 72 Fed. Reg. 12,758, 12,758 (Dep’t

Commerce Mar. 19, 2007) (final results of antidumping duty administrative review) (collectively,

“Final Results”). In such a case, they assert that the automatic liquidation rule of 19 C.F.R.

§ 351.212(c)(1) should apply, despite a policy published by defendant United States (the

“Government”), which provides that a periodic review of entries for any entity in the same chain

of sale will result in a combined “all others” rate for any unreviewed reseller. See Antidumping

& Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 Fed. Reg. 23,954,

23,954 (Dep’t Commerce May 6, 2003) (“Reseller Policy”).3

The Government challenges jurisdiction. It notes that plaintiffs did not participate

in the applicable administrative reviews leading to the Final Results, which stated, in boilerplate

2
(...continued)
review of an order (see paragraph (b)(1), (b)(2), or (b)(3) of
§ 351.213), the Secretary will instruct the Customs Service to
assess antidumping duties or countervailing duties, and to continue
to collect cash deposits, on the merchandise not covered by the
request in accordance with paragraph (c)(1) of this section.

19 C.F.R. § 351.212(c)(1)–(2) (emphasis added).
3
This policy was adopted after notice was published in the Federal Register, and
comments from interested parties were considered. See Antidumping & Countervailing Duty
Proceedings: Assessment of Antidumping Duties, 63 Fed. Reg. 55,361, 55,362–63 (Dep’t
Commerce Oct. 15, 1998) (notice and request for comment on policy concerning assessment of
antidumping duties); Antidumping & Countervailing Duty Proceedings: Assessment of
Antidumping Duties, 67 Fed. Reg. 13,599, 13,599 (Dep’t Commerce Mar. 25, 2002) (additional
comment period).
Court No. 06-00289 Page 4

language, that pursuant to the Reseller Policy the “all others” rate would apply to unreviewed

resellers whose producers were reviewed. See Certain Hot-Rolled Carbon Steel Flat Prods.,

Certain Cold-Rolled Carbon Steel Flat Prods., Certain Corrosion-Resistant Carbon Steel Flat

Prods. & Certain Cut-to-Length Carbon Steel Plate from Canada, 58 Fed. Reg. 37,099,

37,103–04 (Dep’t Commerce July 9, 1993) (final determinations of sales at less than fair value)

(describing all others rate as a combination of the rates of two producers). The Government

argues that the fact that the Reseller Policy is mentioned in the Final Results dictates the

conclusion that plaintiffs’ claims should be construed as a challenge to the Department of

Commerce’s (“Commerce”) determination under 19 U.S.C. § 1675(a). The Government

contends that because a § 1675(a) determination is among those listed in 19 U.S.C. § 1516a,

plaintiffs’ challenge should have been brought in this Court pursuant to 28 U.S.C. § 1581(c). See

19 U.S.C. § 1516a(a)(2)(B)(iii). According to the Government, because 28 U.S.C. § 1581(c)

could have been invoked, and was not a manifestly inadequate means to obtain relief, plaintiffs

cannot now invoke residual jurisdiction under § 1581(i).4

4
28 U.S.C. § 1581 states in relevant part:

(c) The Court of International Trade shall have exclusive jurisdiction of
any civil action commenced under section 516A of the Tariff Act of 1930.
....
(i) In addition to the jurisdiction conferred upon the Court of International
Trade by subsections (a)–(h) of this section and subject to the exception set
forth in subsection (j) of this section, the Court of International Trade shall
have exclusive jurisdiction of 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 –

(1) revenue from imports or tonnage;
(continued...)
Court No. 06-00289 Page 5

Plaintiffs respond that application of the Reseller Policy is a decision separate

from the administrative review, despite the fact that it is reflected in boilerplate in a periodic

review determination under 19 U.S.C. § 1675(a). According to plaintiffs, application of the

Reseller Policy is a decision which relates to the liquidation instructions, and can be challenged

only under 28 U.S.C. § 1581(i). See Consol. Bearings Co. v. United States, 348 F.3d 997, 1002

(Fed. Cir. 2003) (holding that a challenge to liquidation instructions falls under § 1581(i)

jurisdiction).

In this case, plaintiffs cannot bring suit under § 1581(c) because they did not

participate in the review proceeding. See 28 U.S.C. § 2631(c) (stating that only a party to the

“proceeding in connection with which the matter arose” may bring an action challenging the

results of a determination listed in 19 U.S.C. § 1516a). The jurisdictional issue here is whether

plaintiffs were required to bring a challenge to the generally applicable Reseller Policy in such

proceedings, even though they could not have participated as parties with entries to be reviewed

without mooting their case.5 Stated another way, the court must determine whether 28 U.S.C.

4
(...continued)
(2) tariffs, duties, fees, or other taxes on the importation of
merchandise for reasons other than the raising of revenue;
(3) embargoes or other quantitative restrictions on the
importation of merchandise for reasons other than the protection
of the public health or safety; or
(4) administration and enforcement with respect to the matters
referred to in paragraphs (1)–(3) of this subsection and
subsections (a)–(h) of this section.
5
The parties agree that plaintiffs were not prohibited from filing a case brief before the
agency challenging the policy even without participating in a review of their entries. The issue is
whether under these conditions they must file such a brief to preserve jurisdiction.
Court No. 06-00289 Page 6

§ 1581(c) provides a mandatory and adequate avenue to relief that precludes suit under the broad

residual jurisdiction of § 1581(i). This is a question that has confronted the court on many

occasions, but the increasingly convoluted analysis required to resolve it may indicate that it is

time to consider more deeply the meaning of “manifestly inadequate.”

The term “manifestly inadequate,” as applied in the context of this Court’s

jurisdiction, arose out of the concern that 28 U.S.C. § 1581(i) jurisdiction should be avoided

when the use of such jurisdiction would completely gut the requirements of other provisions in

§ 1581. See United States v. UniRoyal, Inc., 69 CCPA 179, 187, 687 F.2d 467, 475 (1982)

(Nies, J., concurring) (articulating view that other forms of relief must be “manifestly

inadequate” before jurisdiction may be invoked under § 1581(i)). The concern was particularly

acute as the plain language of § 1581(i) seemed to allow a party to file suit without following the

mandatory exhaustion steps of protest and protest denial in a customs action, the prerequisites for

§ 1581(a) jurisdiction. See id. at 182–83, 687 F.2d at 471; see also Am. Air Parcel Forwarding

Co. v. United States, 718 F.2d 1546, 1549 (Fed. Cir. 1983). The principle was later applied to

unfair trade cases, where challenges to findings of dumping and subsidization and duty rate

calculations proceed through a carefully orchestrated administrative process before court

challenges under 28 U.S.C. § 1581(c) are allowed. See, e.g., Miller & Co. v. United States, 824

F.2d 961, 963–64 (Fed. Cir. 1987). Over the years, the manifestly inadequate standard has been

applied numerous times to determine whether § 1581(i) jurisdiction would attach instead of

jurisdiction under other provisions of § 1581. The practical result has been a test that, the
Court No. 06-00289 Page 7

Government asserts, requires that jurisdiction under the other sections be a virtual impossibility.

This is not a proper interpretation of the statute or its judicial gloss.

More recently, the harbor maintenance tax (“HMT”) litigation demonstrated that

two avenues of § 1581 jurisdiction may exist simultaneously, at least in theory. The Government

argued vigorously that HMT “payments” must be protested, but the courts ruled that payment

was not a protestable decision and, accordingly, that § 1581(i) jurisdiction applied. See U.S.

Shoe Corp. v. United States, 114 F.3d 1564, 1570 (Fed. Cir. 1997), aff’d, 523 U.S. 360 (1998).

In subsequent cases brought by other parties, the Federal Circuit found that the protest of an

HMT refund request denial was possible and that § 1581(a) jurisdiction was available. See

Swisher Int’l, Inc. v. United States, 205 F.3d 1358, 1369 (Fed. Cir. 2000). These two holdings

create a seeming anomaly which allows a party to assert § 1581(i) jurisdiction where § 1581(a)

could have been exercised instead.6

It is time to consider what these two cases, and other recent cases, mean for the

court-created “manifestly inadequate” limitation upon the seemingly clear broad statutory grant

of jurisdiction in § 1581(i). After reviewing these cases, the court concludes that where the core

of a dispute is within § 1581(i), i.e., it relates to a general issue of administration and

enforcement policy as to the matters listed in § 1581(i)(1)–(3), § 1581(i) should function

6
In the HMT litigation, the claimants in U.S. Shoe asserted § 1581(i) jurisdiction before
the Federal Circuit clarified in Swisher that they could have invoked an administrative procedure
that would have led to a protestable decision. Even if the plaintiffs in U.S. Shoe were not aware
of the potential administrative remedy, the availability of jurisdiction under § 1581(i) has always
hinged on whether the plaintiffs could have used a method that would result in § 1581(a)
jurisdiction, not whether they actually used it. See Omni U.S.A., Inc. v. United States, 840 F.2d
912, 915 (Fed. Cir. 1988) (holding that a legal remedy “is not made inadequate simply because
appellant failed to invoke it within the time frame it prescribes”).
Court No. 06-00289 Page 8

according to its terms, unless it is clear that another provision of § 1581 applies. See H.R. Rep.

No. 96-1235, at 48 (1980) as reprinted in 1980 U.S.C.C.A.N. 3729, 3760 (“Subsection (i), and

in particular paragraph (4), makes it clear that the court is not prohibited from entertaining a civil

action relating to an antidumping or countervailing duty proceeding so long as the action does

not involve a challenge to a determination specified in section 516A of the Tariff Act of 1930.”).

Turning to the circumstances of this case, the court concludes that, even if

plaintiffs had filed a case brief contesting application of the Reseller Policy, Commerce’s

determination regarding the issue would not have constituted a 19 U.S.C. § 1675(a)

determination which qualifies for jurisdiction under 28 U.S.C. § 1581(c). Section 1581(c)

provides for judicial review of specific determinations listed in 19 U.S.C. § 1516a, including

periodic reviews under 19 U.S.C. § 1675(a). See 19 U.S.C. § 1516a(a)(2)(B)(iii). Those reviews

relate specifically to periodic reviews of entries covered by an antidumping or countervailing

duty order. As indicated, none of plaintiffs’ entries were reviewed.

The mere inclusion of boilerplate language in the Final Results that repeats

Commerce’s standard Reseller Policy does not make application of that policy a § 1516a

determination any more than accepting an HMT payment was a Customs decision in U.S. Shoe.

Commerce declared its Reseller Policy in 2003, and merely stated its intention to apply that

policy in standard liquidation instructions in the Final Results. A mere statement declaring

Commerce’s intention to order Customs to apply a default rate is not a § 1516a determination.

Cf. SKF USA Inc. v. United States, Slip Op. 07-43, 2007 WL 867308, at *4 (CIT Mar. 23, 2007)

(statement in final results that liquidation instructions will be issued within 15 days of
Court No. 06-00289 Page 9

publication of results is not § 1516a determination); Mukand Int’l Ltd. v. United States, 452 F.

Supp. 2d 1329, 1332 (CIT 2006) (same); see also Consol. Bearings, 348 F.3d at 1002 (“[A]n

action challenging Commerce’s liquidation instructions is not a challenge to the final results, but

a challenge to the ‘administration and enforcement’ of those final results.”); Shinyei Corp. of

Am. v. United States, 355 F.3d 1297, 1304 (Fed. Cir. 2004) (finding that the issuance of “clean

up” liquidation instructions was not a decision specified in 19 U.S.C. § 1516a; therefore,

jurisdiction was not available under 28 U.S.C. § 1581(c)). These cases make clear that parties

are not required to challenge substantive determinations under § 1581(c), with which they agree,

in order to preserve a challenge to instructions governing the liquidation of goods. Instead,

parties are to file § 1581(i) suits to challenge liquidation instructions, particularly where they do

not reflect Commerce’s underlying 19 U.S.C. § 1516a determination. Accord Canadian Wheat

Bd. v. United States, Slip Op. 07-61, 2007 WL 1219687, at *5–*8 (CIT Apr. 24, 2007) (holding

that plaintiffs who prevailed before a NAFTA bi-national panel, rather than this Court, could

nevertheless challenge the terms of the resulting notice of revocation under 28 U.S.C.

§ 1581(i)(4)). The general rule appears to be that liquidation instructions lead to § 1581(i)

jurisdiction unless they directly implement a 19 U.S.C. § 1516a determination, such as the final

results of an administrative review under § 1675. If they incorrectly implement a § 1675

determination, relief will be granted pursuant to an Administrative Procedures Act (“APA”)

action brought under 28 U.S.C. § 1581(i). See Shinyei, 355 F.3d at 1309.

Here, plaintiffs challenge a general policy that has existed since 2003, which was

adopted after a five-year notice and comment period, and which the Government has defended
Court No. 06-00289 Page 10

vigorously. While it was not impossible under the law for Commerce to abandon the policy in

response to a brief filed by plaintiffs during the relevant administrative reviews, such an outcome

would have been extraordinarily unlikely. Further, plaintiffs’ entries were not reviewed pursuant

to 19 U.S.C. § 1675, and plaintiffs could not have had their entries reviewed and also preserve

their claims, which depended on the entries being unreviewed.

Even assuming, arguendo, that Commerce’s response to a case brief could have

been construed as part of a determination under 19 U.S.C. § 1516a, application of the Reseller

Policy was not part of the actual § 1675 review of entries and 28 U.S.C. § 1581(c) jurisdiction is

at best unclear. Just as it was unclear prior to Swisher that there was a protest avenue to

jurisdiction in HMT cases and, therefore, § 1581(i) jurisdiction attached, in this case it is unclear

that there is a § 1581(c) avenue to relief. Plaintiffs are not required to pursue such a potential

remedy. An unclear avenue to jurisdiction is not an adequate jurisdictional remedy. At the heart

of this case is a claim challenging a general administrative policy setting general liquidation

instructions, not a 19 U.S.C. § 1675 determination upon review of entries.

The Customs Courts Act of 1980 was intended to eliminate jurisdictional disputes

so that matters clearly within this Court’s subject matter jurisdiction could be decided promptly

and without undue expense. See H.R. Rep. No. 96-1235, at 20 (1980), as reprinted in 1980

U.S.C.C.A.N. 3729, 3731 (stating that the Customs Courts Act was intended to provide a

“comprehensive system [that] will ensure greater efficiency in judicial resources and uniformity

in the judicial decision making process”). Arguments about whether these cases should be

decided pursuant to 28 U.S.C. § 1581(c) or (i) do nothing to fulfill this purpose. Taking a
Court No. 06-00289 Page 11

broader and statutorily consistent view of § 1581(i) jurisdiction, as did the courts in Consolidated

Bearings, 348 F.3d at 1002, Shinyei, 355 F.3d at 1309, and Mukand Int’l, Ltd. v. United States,

No. 2006-1258, 2007 WL 571026, at *3 (Fed. Cir. Feb. 6, 2007) (non-precedential) (holding that

a claim for reliquidation of entries found not subject to an antidumping duty order was properly

brought under § 1581(i)(4)), better serves the purpose of the statute.7

Under this holding, parties who mistakenly assert § 1581(c) jurisdiction will not

be prejudiced by their error. There is a two-year statute of limitations under 28 U.S.C. § 2636(i)

for § 1581(i) actions, while the statute of limitations for § 1581(c) cases is much shorter. 19

U.S.C. § 1516a(a)(2). Thus, the party who mistakenly files under 28 U.S.C. § 1581(c) can

amend to assert § 1581(i) jurisdiction.8

7
Neither International Custom Products, Inc. v. United States, 467 F.3d 1324 (Fed. Cir.
2006), nor Norsk Hydro Canada, 472 F.3d 1347, dictate a different result. International Custom
Products involved a choice between § 1581(a) or (i) jurisdiction. As indicated, preservation of
customs protest procedures is a special concern. Norsk Hydro Canada involved a choice between
§ 1581(a) and (c) jurisdiction, and the court found jurisdiction under (c), while emphasizing the
need to determine the essence of the action. Id. at 1355. We do not know what the result would
have been if the latter case was pursued as an (i) case and the “manifestly inadequate” standard
was at issue, as the court was not called upon to make that determination.
8
To avoid refiling the 28 U.S.C. § 1581(i) action, the summons and complaint for a
potential § 1581(c) action should be filed together because 28 U.S.C. § 2632(a) specifies a
concurrent summons and complaint for (i) actions. For § 1581(c) actions, 28 U.S.C. §§ 2632(c)
and 2637(d) refer to the court’s rules on timing of the summons and complaint, but 19 U.S.C.
§ 1516a(a)(2) governs and allows thirty days after the publication of the results to file a summons
and another thirty days for the complaint. The practice comments of the Rules of this Court,
however, encourage simultaneous filing of a summons and complaint in a § 1581(c) action. See
USCIT R. 3 cmt. 2 (“[C]ounsel are encouraged to commence any action described in Section
516A(a)(2) or (3) of the Tariff Act of 1930 and 28 U.S.C. § 1581(c) by the concurrent filing of a
summons and complaint. This will serve to expedite the prosecution of the action.”). In contrast,
in protest denial cases under § 1581(a), a formal complaint may be filed years after the summons,
which commences the action, see DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1318
(continued...)
Court No. 06-00289 Page 12

The court does not conclude that § 1581(i) actions will allow parties to preempt

agency decision-making in antidumping and countervailing duty cases. Under 28 U.S.C.

§ 2637(d), the court may require administrative exhaustion where appropriate. Following this

statute, the court has not hesitated to deny relief when parties have failed to raise issues before

the appropriate administrative bodies, if such an action would not be futile. See, e.g., Carpenter

Tech. Corp. v. United States, 464 F. Supp. 2d 1347, 1349–50 (CIT 2006) (dismissing case for

failure to exhaust administrative remedies in administrative review of an antidumping action);

Ceramica Regiomontana, S.A. v. United States, 16 CIT 358, 362 (1992) (dismissing case for

failure to exhaust administrative remedies in an administrative review of a countervailing duty

action).9 Here the issue was thoroughly explored through comment on the policy and subsequent

agency consideration.

8
(...continued)
(Fed. Cir. 2006) (summons functions as the initial pleading, rather than the complaint). While
there can be as much as a thirty-day gap in § 1581(c) filings, when viewed in the context of the
§ 1581(a) permissible gap, this may be seen as essentially concurrent.
9
Similarly, parties will have little or no incentive to abstain from using available
administrative remedies to obtain a longer statute of limitations under § 1581(i). Although
Shinyei, 355 F.3d at 1309, indicates that liquidation will not prevent remedies if a post-
liquidation APA challenge to liquidation instructions is successful, that case involved a claim of
invalid liquidation contrary to the results of completed litigation under 28 U.S.C. § 1581(c). In
most cases, the risk of irremediable liquidation will compel a plaintiff promptly to file suit. In
this case, plaintiffs arguably commenced suit before a § 1581(c) case could have commenced and
Commerce was willing to delay liquidation instructions to Customs for only two weeks in order
to allow the court to consider its jurisdiction. Further, where parties seek a return of funds or
lower estimated duty rates, there is additional financial incentive to file suit promptly. Finally,
because none of plaintiffs’ entries are the subject of the 19 U.S.C. § 1675 reviews that led to the
Final Results, the proceeding is not delayed or impeded by a separate 28 U.S.C. § 1581(i) action.
Court No. 06-00289 Page 13

Congress did not intend for parties to guess if their action fits into a § 1581

pigeonhole. Those claims that involve clearly protestable matters, or are at the core of an

antidumping or countervailing duty determination, must proceed under § 1581(a) or (c)

respectively. Other matters not clearly provided for in § 1581(a)–(h) were intended to fall into

§ 1581(i) so that no one would be denied an avenue of relief in this general subject matter area.

See H.R. Rep. 96-1235, at 48; see also id., at 59 (“In any civil action other than the ones in

subsections (a)–(c) of this section, the Court of International Trade shall review the matter as

provided for in the Administrative Procedures Act, 5 U.S.C. 706.”); id., at 52 (“Subsection (i) [of

28 U.S.C. § 2631] is a new provision which states that a civil action other than one specified in

subsections (a)–(h) of this section may be commenced by a person adversely affected or

aggrieved by a government agency action within the meaning of 5 U.S.C. 702. This subsection is

intended to correlate with and complement the broad grant of residual jurisdiction found in

proposed section 1581(i).”); 5 U.S.C. § 704 (providing review under the APA for a “final agency

action for which there is no other adequate remedy in a court”). This action involves a generally

applicable administrative policy, unreviewed entries, and liquidation instructions not dependent

on the results of the review. Jurisdiction is appropriate under 28 U.S.C. § 1581(i).

Plaintiffs next assert that they would suffer irreparable harm if their entries are

liquidated before this action is decided.10 This is likely so, unless the rule of Shinyei is broadly

applied,11 but even were they able to establish irreparable harm, plaintiffs must also demonstrate

10
The preliminary injunction sought would extend through all levels of appeal.
11
It is unclear under Shinyei whether prior liquidation of entries would ever act as a bar
(continued...)
Court No. 06-00289 Page 14

that there is some chance they would succeed on the merits of this action. See Torrington Co. v.

United States, 20 CIT 1293, 1295 (1996) (“The decision in FMC [Corp. v. United States, 3 F.3d

424 (Fed. Cir. 1993),] makes it clear that showing irreparable harm . . . does not obviate the need

to show some likelihood of success on the merits.”). Plaintiffs have not shown such a chance.

19 C.F.R. § 351.212(c) is silent as to what constitutes the “request for an

administrative review” that eliminates automatic liquidation at the producer’s deposit rate. The

Government interprets the regulation to mean a request by or about any seller in the non-

reviewee’s chain of sale. Plaintiffs interpret it to mean a request by or applicable to the reseller

at issue.

The Government describes the purpose of the policy as follows:

[The] Reseller Policy addresses an ambiguity in Commerce’s regulations
regarding the assessment rate for liquidation of a reseller’s entries of a producer’s
merchandise when: (1) the reseller’s entries entered under the producer’s cash-
deposit rate; (2) a review is requested of the producer, but not of the reseller; and
(3) the producer did not have knowledge at the time of the sale to the reseller that
the merchandise was ultimately destined for the United States.

(Def’s Combined Mot. to Dismiss & Resp. to Pls.’ Mot. for J. On the Agency R. 22.)

Commerce may in the first instance interpret its own regulation. Cathedral Candle

Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352, 1363 (Fed. Cir. 2005) (“[I]t is well settled that

an agency’s interpretation of its own regulations is entitled to broad deference from the courts.”).

Even if the court accorded Commerce’s interpretation a lesser degree of deference because it is a

change in policy, the Reseller Policy is consistent with the regulation in the context of an

11
(...continued)
to relief in an APA review of liquidation instructions. See supra note 9.
Court No. 06-00289 Page 15

administrative review. First, because a producer receives a new rate upon review, the cash

deposit rate plaintiffs seek no longer has validity. Thus, there seems to be no good reason for the

cash deposit rate to be automatically applied. Second, there is no reason that a reseller or its

importer should be entitled to choose among the rates it prefers when none is specific to it, and

when it may request its own rate. Plaintiffs object to the “all others” rate, but they had a clear,

although perhaps expensive, avenue for avoiding it – they could have obtained a reseller-specific

rate.12

Furthermore, although 19 C.F.R. § 351.212(c) refers to reviews of an order, it is

sales of particular producers or exporters which are reviewed. See 19 C.F.R. § 351.212(c)(2); 19

C.F.R. § 351.213(b). Thus, it is the sales of merchandise made in various steps from the producer

that are the subject of the review. As the Reseller Policy applies when the producer does not

know that the goods are destined for the U.S. market, the Reseller Policy focuses on the export

sales where the price discrimination may have occurred. Therefore, Commerce’s interpretation is

reasonable in the context of the entire review process, and the court sees nothing in the Reseller

Policy that is forbidden by statute or regulation, and no indication that the policy is arbitrary and

capricious.

Moreover, as Commerce merely interpreted the ambiguous words “request for an

administrative review” in 19 C.F.R. § 351.212(c), formal notice and comment procedures under

the APA were not required. Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs,

260 F.3d 1365, 1375 (Fed. Cir. 2001) (interpretive rules exempt from APA notice and comment

12
The parties also agree a reseller review may be requested as a protective matter, and
withdrawn if no one else requests a review in the applicable chain of sale.
Court No. 06-00289 Page 16

procedures). While the court notes that Commerce might have just as easily published notice of a

regulation amendment, as a matter of fairness, there was a long notification period,13 which

allowed for comment. Further, the reseller policy has been ruled not impermissibly retroactive.

Parkdale Int’l v. United States, 475 F.3d 1375, 1378–79 (Fed. Cir. 2007) (discussing retroactive

application of the Reseller Policy in a prior administrative review period).14

The remainder of the injunctive factors do not weigh in plaintiffs’ favor and

cannot overcome the fact that their claim, thus far, fails on the merits. See FMC, 3 F.3d at 431

(affirming denial of preliminary injunction without discussion of balance of hardships or public

interest, concluding that proof of irreparable harm did not “outweigh [plaintiff’s] failure to

establish a likelihood of success on the merits”).

Accordingly, plaintiffs’ motion for a preliminary injunction is DENIED.

/s/ Jane A. Restani
Jane A. Restani
Chief Judge

Dated this 11th day of May, 2007.
New York, New York.

13
See supra note 3.
14
The court does not reach the issue of whether any injunction granted could apply to
plaintiff-intervenor’s entries. The res of an action brought under § 1581(i) is not as specific as
that of an action brought under § 1581(c). Thus, defendant’s arguments in that regard are
problematic.
 UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________
:
PARKDALE INTERNATIONAL, LTD., :
RIVERVIEW STEEL CO., LTD., and :
SAMUEL, SON & CO., LTD., :
:
Plaintiffs, :
: Before: Jane A. Restani, Chief Judge
and :
: Court No. 06-00289
RUSSEL METALS EXPORT, :
:
Plaintiff-Intervenor, :
:
v. :
:
UNITED STATES, :
:
Defendant. :
____________________________________:

JUDGMENT

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

having rendered a decision therein; now, in conformity with that decision,

IT IS HEREBY ORDERED that Plaintiffs Parkdale International, Ltd., Riverview

Steel Co., Ltd., and Samuel, Son & Co., Ltd.’s motion for a preliminary injunction is denied.

Plaintiff-Intervenor Russel Metals Export’s motion for a preliminary injunction is also denied.

/s/ Jane A. Restani
Jane A. Restani
Chief Judge

Dated: This 11th day of May, 2007.
New York, New York.
 ERRATA

Please make the following changes to the Order published May 11, 2007 in Parkdale, et al. v.
United States, Ct. No. 06-00289:

• page 9, line 18: replace “Procedures” with “Procedure”.

Dated, May 16, 2007.

/s/ Jane A. Restani
Jane A. Restani
Chief Judge