American Signature, Inc. v. United States

Slip Op. 07-20

UNITED STATES COURT OF INTERNATIONAL TRADE

------------------------------x
AMERICAN SIGNATURE, INC., :
:
Plaintiff, :
: Before: Pogue, Judge
v. : Court No. 06-00252
:
UNITED STATES, :
:
Defendant, :
:
AMERICAN FURNITURE MFRS. :
COMM. FOR LEGAL TRADE :
:
Defendant- :
Intervenors :
:
------------------------------x

[Defendant’s motion to dismiss granted; judgment of dismissal
entered.]

Dated: February 14, 2007

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
(Paul G. Figueroa, Bruce M. Mitchell, Mark E. Pardo, William F.
Marshall) for Plaintiff.

Peter D. Keisler, Assistant Attorney General; Jeanne
Davidson, Acting Director, Patricia M. McCarthy, Assistant
Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (Michael D. Panzera); Natasha C. Robinson,
Attorney, Of Counsel, Office of Chief Counsel for Import
Administration, U.S. Department of Commerce, for the Defendant.

King & Spalding, LLP (Joseph W. Dorn, Stephen A. Jones,
Jeffrey M. Telep, J. Michael Taylor) for the Defendant-
Intervenor.

OPINION AND ORDER

Pogue, Judge: Plaintiff, American Signature, Inc., (“ASI”),

asserting jurisdiction pursuant to 28 U.S.C. § 1581(i)(“section
Court No. 06-00252 Page 2

1581(i)")1, appeals the prospective application by the Department

of Commerce (“Commerce”) of amended antidumping duty rates

resulting from ministerial error corrections, and specifically

Commerce’s refusal to instruct the United States Bureau of Customs

and Border Protection (“Customs” or “CBP”) to refund cash deposit

overpayments for entries made between June 24, 2004 and August 4,

2004 and between November 17, 2004 and January 4, 2005. Defendant,

the United States, pursuant to USCIT R. 12(b)(1), moves to dismiss

this action and dissolve the preliminary injunction, claiming a

lack of subject matter jurisdiction. The court finds that

Plaintiff has failed to properly utilize jurisdiction available

under 28 U.S.C. § 1581(c), and, accordingly, this action must be

dismissed.

BACKGROUND

A.

“[T]he United States uses a ‘retrospective’ assessment system

under which final liability for antidumping and countervailing

duties is determined after merchandise is imported.” 19 C.F.R. §

351.212(a);2 see also Hebei New Donghua Amino Acid Co. v. United

States, 29 CIT __, __, 374 F. Supp. 2d 1333, 1339 (2005). In this

1
All references to the United States Code (“U.S.C.”) are to
the 2000 edition.
2
All references to the Code of Federal Regulations
(“C.F.R.”) are to the 2005 edition.
Court No. 06-00252 Page 3

regime, during the course of an antidumping duty investigation

conducted pursuant to section 732, et seq. of the Tariff Act of

1930, 19 U.S.C. §§ 1673a et seq., Commerce may estimate at various

times the rate of antidumping duty that will ultimately be

assessed. See Decca Hospitality Furnishings LLC v. United States,

30 CIT __, __, 427 F. Supp. 2d 1249, 1251 (2006). The first of

such estimates follows an affirmative preliminary determination

that dumping has occurred. Id.; 19 U.S.C. § 1673b(d). “Pursuant

to this initial estimate, Commerce instructs [Customs] to collect

estimated duties, sometimes referred to as ‘cash deposits,’ on

entries of the merchandise that is subject to investigation.” Decca

Hospitality, 30 CIT at __, 427 F. Supp. 2d at 1251; 19 U.S.C. §

1673b(d)(1)(B); 19 U.S.C. § 1673e(a)(1); Mitsubishi Elecs. Am.,

Inc. v. United States, 44 F. 3d 973, 976-77 (Fed. Cir. 1994). At

the completion of its investigation, Commerce issues a final

determination, and antidumping duty order, in which it may (and

frequently does) adjust its initial estimate. Decca Hospitality,

30 CIT at __, 427 F. Supp. 2d at 1251. In addition, Commerce’s

regulations permit correction of “ministerial errors” after a final

determination. 19 C.F.R. § 351.224(e). Such corrections may again

alter a cash deposit rate.

The process of an “administrative review,” is the means by

which the actual liability faced by the importers is established.

See 19 C.F.R. § 351.213(a) (“Although duty liability may be
Court No. 06-00252 Page 4

determined in the context of other types of reviews, the most

frequently used procedure for determining final duty liability is

the administrative review procedure under section 751(a)(1) of the

Act.”); see also Mukand Int’l, Ltd. v. United States, Appeal No.

06-1259 at 2-3 (Fed. Cir. Feb. 6, 2007).

Neither statute nor regulation requires an administrative

review. Rather, administrative reviews are conducted either when

they are requested by an interested party or when the Secretary of

Commerce self-initiates such a review. 19 C.F.R. § 351.213.

If an administrative review is conducted, and Commerce

determines that the estimated liability, in the form of cash

deposits, is less than the actual liability, the importer is

required to pay the difference between the actual and estimated

liabilities, plus interest. 19 U.S.C. §§ 1673f(b)(1), 1677g.

Conversely, if the estimated liability, in the form of cash

deposits, is greater than the actual liability, then Customs

refunds the difference plus interest to the importers. 19 U.S.C.

§§ 1673f(b)(2), 1677(g). This procedure establishes that the

liquidation rate is the same as the final duty liability as

determined by the administrative review.

In the event an administrative review is not conducted,

however, the procedure for establishing the rate at which the

goods will be liquidated differs. In such an instance, in
Court No. 06-00252 Page 5

accordance with 19 C.F.R. § 351.212(c)(1)(i),3 Commerce instructs

Customs to liquidate the entries at the rate equal to the cash

deposit required on the merchandise at the time of entry. See

Consol. Bearings Co. v. United States, 348 F. 3d 997, 1000 (Fed.

Cir. 2003)(“Without a request for administrative review, Commerce

liquidates the merchandise at the cash deposit rates (i.e., the

deposit rates at the time of entry.)”)4; Mitsubishi Elecs. Am. v.

United States, 44 F. 3d at 975 (Commerce automatically assesses

antidumping duties if no party requests a review); cf. Consol.

Bearings Co. v. United States, 412 F. 3d 1266, 1268 (Fed. Cir.

2005) (affirming Commerce’s practice to treat resellers as it would

any company that has not been subject to an administrative review

3
19 C.F.R. § 351.212(c)(1)(i)reads:

(c)Automatic assessment of antidumping and
countervailing duties if no review is requested.
(1) If the Secretary does not receive a timely
request for an administrative review of an order . . .
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 . . . .

19 C.F.R. § 351.212(c)(1)(i).

4
As the court has noted here, Commerce does not in fact
liquidate the entries, but rather, instructs Customs to liquidate
the entries, providing the rate at which to do so.
Court No. 06-00252 Page 6

“and [assess] a duty at the rate required on the merchandise at the

time of entry.”).

B.

This case arises from Commerce’s antidumping duty

investigation, initiated in December, 2003, of wooden bedroom

furniture from the People’s Republic of China (“PRC”). See Wooden

Bedroom Furniture from the People’s Republic of China, 68 Fed. Reg.

70,228 (Dep’t Commerce Dec. 17, 2003)(initiation of antidumping

duty investigation). Commerce published the preliminary

determination from this investigation on June 24, 2004, in which it

established a 19.24% cash deposit rate calculated for Rui Feng

Woodwork Co., Rui Feng Lumber Development Co., Ltd, and Dorbest,

Ltd. (collectively “Dorbest”), unaffiliated Chinese suppliers of

ASI, which is, in turn, an importer of Dorbest’s products. Wooden

Bedroom Furniture from the People’s Republic of China, 69 Fed. Reg.

35,312, 35,327 (Dep’t Commerce June 24, 2004)(notice of preliminary

determination of sales at less than fair value and postponement of

final determination)(“Preliminary Determination”).

Based on the preliminary determination, on June 30, 2004,

Commerce issued instructions to Customs to collect an estimated

duty deposit of 19.24% for all entries of subject merchandise

exported by Dorbest and entered for consumption on or after June

24, 2004. See Message No. 4182201 from Commerce to CBP

Re:Preliminary Determination in the AD Duty Investigation of Wooden
Court No. 06-00252 Page 7

Bedroom Furniture From China (A-570-890)(June 30, 2004), Amended

Public Record, Ex. 8 (“A.P.R.”).

After the publication of the preliminary determination,

pursuant to 19 C.F.R. § 351.224(c)and(e),5 interested parties to

5
In relevant part, those sections provide:
(c) Comments regarding ministerial errors--

(1) In general. A party to the proceeding to whom the
Secretary has disclosed calculations performed in
connection with a preliminary determination may submit
comments concerning a significant ministerial error in
such calculations. A party to the proceeding to whom
the Secretary has disclosed calculations performed in
connection with a final determination or the final
results of a review may submit comments concerning any
ministerial error in such calculations. Comments
concerning ministerial errors made in the preliminary
results of a review should be included in a party's
case brief.

(e) Corrections. The Secretary will analyze any
comments received and, if appropriate, correct any
significant ministerial error by amending the
preliminary determination, or correct any ministerial
error by amending the final determination or the final
results of review (whichever is applicable). Where
practicable, the Secretary will announce publicly the
issuance of a correction notice, and normally will do
so within 30 days after the date of public
announcement, or, if there is no public announcement,
within 30 days after the date of publication, of the
preliminary determination, final determination, or
final results of review (whichever is applicable). In
addition, the Secretary will publish notice of such
corrections in the Federal Register. A correction
notice will not alter the anniversary month of an order
or suspended investigation for purposes of requesting
an administrative review (see § 351.213) or a new
shipper review (see § 351.214) or initiating a sunset
review (see § 351.218).

(continued...)
Court No. 06-00252 Page 8

the investigation submitted allegations that Commerce’s preliminary

determination contained ministerial errors.6 In response, on

August 5, 2004, Commerce published an Amended Preliminary

Determination which corrected acknowledged ministerial errors in

the original preliminary deposit rates, reducing Dorbest’s

preliminary margin to 11.85%. See Wooden Bedroom Furniture from

the People’s Republic of China, 69 Fed. Reg. 47,417, 47,418 (Dep’t

Commerce Aug. 5, 2004)(notice of amended preliminary antidumping

duty determination of sales at less than fair value) (“Amended

Preliminary Determination”).

Accordingly, on August 18, 2004, Commerce issued revised

instructions directing Customs to collect a cash deposit at the

rate of 11.85% for all entries of subject merchandise exported by

Dorbest and entered for consumption on or after August 5, 2004.

See Message No. 4231201 from Commerce to CBP Re: Amended Cash

5
(...continued)
19 C.F.R. § 351.224(c) and (e).

6
Among the ministerial errors alleged by Dorbest was
Commerce’s inclusion of scrap wood and scrap cardboard as inputs,
rather than subtraction of these items as by-products in
calculating Dorbest’s factors of production in computing
Dorbest’s preliminary margin. Commerce did not correct that
alleged ministerial error. Memorandum from James H. Jochum to
Jeffrey A. May, Issues and Decision Memorandum for the Less-Than-
Fair-Value Investigation of Wooden Bedroom Furniture from the
People’s Republic of China, at 231-233 (Cmt. 33), Dep’t of
Commerce (November 8, 2004), A.P.R. Ex. 5, available at
http://ia.ita.doc.gov/frn/summary/prc/04-25507-1.pdf (“Issues &
Decision Mem.”).
Court No. 06-00252 Page 9

Deposit Instructions for Wooden Bedroom Furniture, From the

People’s Republic of China (A-570-890)(August 18, 2004), A.P.R.,

Ex. 9.

After the publication of the Preliminary Determination and the

Amended Preliminary Determination, Fairmont Designs, Inc.

(“Fairmont”), a similarly-situated party to the investigation,7 and

a party to the companion case No. 06-00249, requested that Commerce

issue instructions to Customs to retroactively assess duties at the

amended rate, and to return all excess cash deposits and release

all excess bonds immediately.

On November 17, 2004, Commerce issued its final determination

for this antidumping duty investigation, in which Dorbest’s dumping

margin rate was calculated to be 16.70%. See Wooden Bedroom

Furniture from the People’s Republic of China, 69 Fed. Reg. 67,313,

67,317 (Dep’t Commerce Nov. 17, 2004)(final determination of sales

at less than fair value)(“Final Determination”).

This determination was adopted and accompanied by the “Issues

and Decision Memorandum” for the Less-Than-Fair-Value Investigation

of Wooden Bedroom Furniture from the People’s Republic of China.

Issues & Decision Mem., A.P.R. Ex. 5. In the Issues & Decision

Mem., Commerce rejected Fairmont’s request that Commerce instruct

7
Fairmont is also an importer of wooden bedroom furniture
from the People’s Republic of China. Neither ASI nor Dorbest
submitted a case brief to Commerce contesting the prospective,
but not retrospective, application of the 11.85% cash deposit
rate.
Court No. 06-00252 Page 10

Customs to assess duties at the newly amended rate which had been

corrected for ministerial errors, not only prospectively but

retrospectively (for the period of June 24, 2004 through September

9, 2004). Issues & Decision Mem., A.P.R. Ex. 5 at 336-337 (Cmt.

76).

In rejecting Fairmont’s request, Commerce pointed to the

statutory and regulatory scheme that permits parties to obtain

recourse for the overpayment of duties and interest. Commerce

explained that 19 U.S.C. § 1675(a) allows parties to request an

administrative review, and that 19 U.S.C. § 1673f allows parties to

“obtain interest on overpayment of such duties based on the results

of [the administrative] review.” Id. According to Commerce, these

sections together provide the appropriate avenue “for parties to

obtain accurate assessment of duties where they believe there is a

difference between the deposit of estimated antidumping duties and

final assessment of antidumping duties.” Id. at 337. As Defendant

noted in its brief, “[t]he agency’s determination was equally

applicable to Fairmont Designs, Dorbest, and any other interested

party that believed it was entitled to a refund of any excess cash

deposits paid during the investigation.” Def.’s Mot. Dismiss &

Dissolve Prelim. Inj. 5 (“Def.’s Mot.”).

Pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a, any

party wishing to challenge Commerce’s Final Determination had

thirty days to appeal. No parties challenged Commerce’s decision,
Court No. 06-00252 Page 11

elaborated upon in the Issues and Decision Mem., to apply the new

cash deposit rates only prospectively and not retrospectively.8

After publication of the Final Determination, Dorbest

submitted allegations of ministerial errors pursuant to 19 C.F.R.

§ 351.224. Commerce acknowledged that it made ministerial errors,

and published an amended final determination and antidumping duty

order declaring that Dorbest’s final antidumping duty margin was

reduced to 7.87%.9 See Wooden Bedroom Furniture from the People’s

Republic of China, 70 Fed. Reg. 329, 330 (Dep’t Commerce Jan. 4,

2005) (notice of amended final determination of sales at less than

fair value) (“Amended Final Determination”). Once again, Commerce

issued instructions to Customs to apply the new cash deposit rate

prospectively, instructing it to apply the 7.87% rate for subject

merchandise entered for consumption on or after January 4, 2005.

See Message No. 5033207 from Commerce to CBP Re: Notice of Amended

Final Determination and Antidumping Duty Order in, the Antidumping

Duty Investigation of Wooden Bedroom Furniture from China (A-570-

8
The parties did challenge many other issues. See Dorbest
Ltd. v. United States, 30 CIT ___, Slip Op. 06-160 (Oct. 31,
2006).
9
The chart below provides a timeline of the different rates
applied to wooden bedroom furniture manufactured by Dorbest and
imported into the United States.

June 24, 2004 Aug. 5, 2005 - Nov. 17, 2004 Jan. 4, 2005 -
- Aug. 4, 2004 Nov. 16, 2004 - Jan. 3, 2005 present
19.24% 11.85% 16.70% 7.87%
Court No. 06-00252 Page 12

890)(Feb. 2, 2005), A.P.R. Ex. 11.

On January 3, 2006, Commerce published a notice of opportunity

to request an administrative review for entries covering the period

of June 24, 2005, through December 31, 2005. Antidumping or

Countervailing Duty Order, Finding, or Suspended Investigation;

Opportunity to Request Administrative Review, 71 Fed. Reg. 89

(Dep’t Commerce Jan. 3, 2006). Dorbest, in addition to the

petitioners, requested an administrative review on January 31,

2006. Commerce initiated the administrative review on March 7,

2006, covering Dorbest and several other companies. Wooden Bedroom

Furniture from the People’s Republic of China, 71 Fed. Reg. 11,394

(Dep’t Commerce Mar. 7, 2006)(notice of initiation of

administrative review of the antidumping duty order). However,

both the petitioners and Dorbest withdrew their requests for

administrative review; subsequently, Commerce rescinded the review.

Wooden Bedroom Furniture from the People’s Republic of China, 71

Fed. Reg. 37,539 (Dep’t Commerce June 30, 2006). (notice of partial

rescission of the antidumping duty administrative

review)(“Rescission”).

In June 2006, after the close of the administrative record,

ASI objected to Commerce’s failure to make retroactive the amended

duty rates. ASI requested that Commerce instruct Customs to refund

any excess cash deposit overpayments for entries made between June

24, 2004, and August 4, 2004, and between November 17, 2004, and
Court No. 06-00252 Page 13

January 4, 2005. See Letter from Grunfield, Desiderio, Lebowitz,

Silverman & Klestadt LLP, to Secretary of Commerce, Re: Request for

Refund of Excess Estimated AD Deposits: Wooden Bedroom Furniture

from the People’s Republic of China, (June 8, 2006), Business

Proprietary Record Ex. 2; Letter from Grunfeld, Desiderio,

Lebowitz, Silverman & Klestadt LLP, to Secretary of Commerce, Re:

Request for Refund of Excess Estimated AD Deposits: Wooden Bedroom

Furniture from the People’s Republic of China, (June 28, 2006),

A.P.R. Ex.17 (stating that Commerce was failing to meet its

statutory and regulatory obligations to correct ministerial

errors).

In accordance with the Rescission and with 19 C.F.R.

351.212(c)(1)(i)10, Commerce instructed Customs to assess duties on

the subject merchandise at the rate equal to the cash deposit rate

applicable to the subject merchandise at the time of entry.

Message No. 6205204 from Commerce to CBP Re: Notification of

Partial Rescission of Admin. Review & Liq. Inst. for Various

Exporters Covered by Antidumping Duty Order on Wooden Bedroom

Furniture from China (A-570-890)(July 24, 2006), A.P.R. Ex. 12

(“Customs Message 6205204"). Customs instructed all port directors

to liquidate all entries of subject merchandise exported by Dorbest

10
ASI correctly notes that “Commerce’s instructions to
liquidate the entries subject to ASI’s claim in this appeal were
[] issued pursuant to Commerce’s ‘automatic assessment’ policy,”
found at 19 C.F.R. § 351.212(c)(1). Pl.’s Resp. Mots. Dismiss 9
n.2 (“Pl.’s Resp.”).
Court No. 06-00252 Page 14

and entered for consumption between June 24, 2004 - December 20,

2004 and December 28, 2004 - December 31, 2005 and to assess

antidumping duties equal to the deposit rate in effect at the date

of entry. See Message No. 6205205 from Commerce to CBP Re:

Notification of Automatic Liquidation Instructions for, Various

Exporters Covered by the Antidumping Duty Order, on Wooden Bedroom

Furniture from China (A-570-890)(July 24, 2006), A.P.R. Ex. 13.

On August 1, 2006, ASI appealed to this court, asserting

jurisdiction pursuant to 28 U.S.C. § 1581(i), and moved for a

preliminary injunction to which the government consented. On

October 17, 2006, the Defendant moved to dismiss and dissolve the

preliminary injunction, asserting that the court does not possess

jurisdiction to entertain this claim under 28 U.S.C. § 1581(i).

Defendant-Intervenor filed a similar motion on August 28, 2006.

DISCUSSION

Subsection 1581(i)(4) of Title 28 of the United States Code is

a “broad residual jurisdictional provision[,]” Miller & Co. v.

United States, 824 F. 2d 961, 963 (Fed. Cir. 1987); nevertheless,

this subsection “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.” Norcal/Crosetti Foods, Inc. v. United States, 963 F.
Court No. 06-00252 Page 15

2d 356, 359 (Fed. Cir. 1992) (quoting Miller & Co., 824 F. 2d at

963; citing National Corn Growers Ass’n v. Baker, 840 F. 2d 1547,

1557 (Fed. Cir. 1988))(emphasis in original); see also Int’l Custom

Products, Inc. v. United States, 467 F. 3d 1324, 1327 (Fed. Cir.

2006); cf. Ceramica Regiomontana, S.A. v. United States, 5 CIT

23,26, 557 F. Supp. 596, 600 (1983)(jurisdiction lies under Section

1581(i) where the decision challenged was not made during a

proceeding that would produce a determination reviewable under 19

U.S.C. § 1516a and 28 U.S.C. § 1581(c)); see also Am. Air Parcel

Forwarding v. United States, 718 F. 2d 1546 (Fed. Cir. 1983);

United States v. Uniroyal Inc., 687 F. 2d 467, 471 (CCPA 1982); cf.

Norsk Hydro Canada, Inc. v. United States, Appeal Nos. 06-1044, 06-

1052, at 14-16 (Fed. Cir. Dec. 14, 2006)(Unlike section 1581(i)

cases, the one-time availability of (a) jurisdiction does not

foreclose the current availability of (c) jurisdiction).

ASI claims that it is challenging “Commerce’s liquidation

instructions to [Customs], and Commerce’s refusal to instruct

Customs to make corrections for those entries made by ASI using a

deposit rate that Commerce had acknowledged was in error.” Pl.’s

Resp. 7 (emphasis omitted). As 28 U.S.C. § 1581(i)(4) confers

jurisdiction on the court for claims against the United States

arising out of any law providing for “administration and

enforcement” with respect to matters referred to in subsections

(a)-(h) of 28 U.S.C. § 1581, see 28 U.S.C. § 1581(i), ASI avers its
Court No. 06-00252 Page 16

challenge to Commerce’s liquidation instructions relates to the

administration and enforcement of Commerce’s antidumping duty

determination, and therefore no action would lie under 28 U.S.C. §

1581(c). Pl.’s Resp. 8. Therefore, ASI contends, the action is

properly before the court under 28 U.S.C. § 1581(i). Id.

Defendant and Defendant-Intervenor challenge ASI’s assertion

of section 1581(i) jurisdiction on two bases. First, Defendant

claims that ASI’s failure to request and pursue an administrative

review, a review appealable pursuant to section 1581(c), represents

ASI’s abandonment of a remedy that would have been available under

section 1581(c). Def.’s Mot. 12-14. Secondly, Defendant and

Defendant-Intervenor argue that ASI’s failure to challenge

Commerce’s refusal-- in the Issues & Decision Mem. adopted in the

Final Determination-- to adjust cash deposit rates retrospectively,

bars ASI from seeking relief under section 1581(i), because ASI

could have sought relief under 28 U.S.C. § 1581(c) by challenging

Commerce’s final determination. Id. at 11-12.

ASI supports its assertion that this action is properly

brought under section 1581(i) by noting that Commerce’s issuance of

liquidation instructions is not a reviewable determination under 19

U.S.C. § 1516a, and therefore cannot be challenged in front of the

Court of International Trade under 28 U.S.C. § 1581(c). Pl.’s

Resp. 8. Therefore, ASI claims, because Commerce’s decision is

related to the enforcement and administration of a matter that
Court No. 06-00252 Page 17

would normally fall under section 1581(c), but cannot be challenged

under section 1581(c), an appeal must be available pursuant to

section 1581(i).

To further bolster its assertion that this case is properly

brought before the court through section 1581(i), ASI points to

decisions of the Federal Circuit that stand for the proposition

that challenges to Commerce’s liquidation instructions may not be

brought under 28 U.S.C. § 1581(a) or (c). These cases reflect

instances where parties failed to request an administrative review,

and then challenged Commerce’s liquidation instructions under

section 1581(i). See Pl.’s Resp. 9-11; Mitsubishi Elecs., 44 F.

3d 973 (finding that a challenge to Commerce’s automatic assessment

policies was properly brought under section 1581(i), when a party

failed to avail itself of the opportunity for an administrative

review, but finding the challenge barred under the two year statute

of limitations); Consolidated Bearings Co., 348 F. 3d 997(finding

that because Consolidated did not challenge the final results,

section 1581(c) was not and could not have been a source for

jurisdiction in that case); see also Shinyei Corp of Am. v. United

States, 355 F. 3d 1297 (Fed. Cir. 2004) (finding jurisdiction under

section 1581(i) when the issued liquidation instructions were

alleged to be non-conforming with the final results of the
Court No. 06-00252 Page 18

administrative review).11 However, as noted by Defendant and

Defendant-Intervenor, there is one clear difference between those

cases and the case before this court. Here, Commerce concluded in

its final determination that it would not change the cash deposits

retroactively, and that there was a statutorily established means

for “addressing cash deposits that interested parties believe are

not an accurate estimate of the duties to be assessed,” i.e., a

request for administrative review. Issues & Decision Mem., A.P.R.

Ex. 5 at 336 (Cmt. 76). Therefore, ASI’s complaint necessarily

challenges a finding or conclusion, within the meaning of 19 U.S.C.

§ 1516a(a)(2)(A), that is appealable pursuant to 19 U.S.C. §

1516a(a)(2)(B)(i); accordingly, the appropriate avenue for appeal

of such a determination was a challenge pursuant to 28 U.S.C. §

1581(c).12 See Norsk Hydro, Appeal Nos. 06-1044, 06-1052 at 17

11
Most recently, this court recognized jurisdiction under 28
U.S.C. § 1581(i) to hear a challenge to 19 C.F.R. § 351.212, the
automatic assessment regulation also at issue in this case. See
Mittal Canada, Inc. v. United States, 30 CIT __, Slip Op. 06-143
(Sept. 22, 2006). Mittal, however, was the result of a challenge
to the automatic assessment regulation as applied to importers
undergoing a changed circumstances review. Id. The court found
that the regulation, as applied there to changed circumstances
reviews, was neither internally inconsistent nor unreasonable.
Id. at 10,16.
12
Unlike Shinyei, in which the plaintiff alleged that
Commerce failed to comport with its stated intentions in the
final determination, here ASI makes no such claim. See Shinyei
355 F. 3d at 1302, n.2; Pl.’s Compl. Nor could it. In this
instance Commerce’s liquidation instructions were based on, and
in line with, its statements in the Issues & Decision Mem.
accompanying the final determination.
Court No. 06-00252 Page 19

(Commerce’s legal conclusion in the administrative process that it

did not have the legal authority to remedy a deemed liquidation was

“subject to judicial review under 19 U.S.C. § 1516a(a)(2)(A) and 28

U.S.C. § 1581(c)”).

As the Federal Circuit explained in Norsk Hydro, analysis of

jurisdiction requires determination of the “true nature of the

action in district court.” Norsk Hydro, Appeal Nos. 06-1044, 06-

1052 at 13 (citing Williams v. Sec’y of Navy, 787 F. 2d 552, 557

(Fed. Cir. 1986)). Here, the true nature of ASI’s action was

properly stated under section 1581(c). Commerce’s instructions

followed, and did not deviate from, its amended Final

Determination. Therefore, the court cannot entertain this claim

under section 1581(i).

ASI contends that it could not actually have challenged

Customs’ liquidation of goods at the cash deposit rate, because it

is challenging Commerce’s liquidation instructions to Customs and

not “Commerce’s determination that Dorbest made sales at less than

fair value or Commerce’s decisions and methodologies used in its

calculation of Dorbest’s dumping margin . . .” or “to accept or

reject the various ministerial error allegations made by Dorbest in

the dumping investigation . ” Pl.’s Resp. 7. Unfortunately, ASI

is ignoring the line drawn by the regulations. Commerce issued

liquidation instructions to Customs in accordance with 19 C.F.R. §

315.212(c). Those instructions provide for the liquidation of
Court No. 06-00252 Page 20

goods at the rate equal to the cash deposit rate required at the

time of entry. 19 C.F.R. § 315.212(c). Therefore, a refusal on

Commerce’s part to instruct Customs to apply the new cash deposit

rates retroactively, in the absence of an administrative review,

leads to a liquidation of goods at the existing cash deposit rates

under the automatic assessment regulation. ASI’s distinction

between cash deposit rates and liquidation instructions, in the

case at bar, is simply not at issue. The liquidation instructions

added nothing to Commerce’s amended final determination, but rather

simply implemented it.

Defendant-Intervenor correctly characterizes the “true nature”

of ASI’s claim as a “challenge to Commerce’s decision in the final

determination that the ministerial error corrections do not apply

retroactively [to the date of the preliminary determination].”

Def.-Intervenor’s Reply Pl.’s Resp. Mots. Dismiss 3. Jurisdiction

to hear this claim was provided under 28 U.S.C. § 1581(c), and

therefore the court will not entertain the claim under section

1581(i).
Court No. 06-00252 Page 21

CONCLUSION

The court therefore grants Defendant’s motion and dismisses

Plaintiff’s claim, in accordance with USCIT R. 12(b)(1), and

dissolves the preliminary injunction. Judgment will be entered

accordingly.

/s/Donald C. Pogue
Donald C. Pogue
Judge

Dated: February 14, 2007
New York, New York
 Slip Op. 07-20

UNITED STATES COURT OF INTERNATIONAL TRADE

------------------------------x
AMERICAN SIGNATURE, INC., :
:
Plaintiff, :
: Before: Pogue, Judge
v. : Court No. 06-00252
:
UNITED STATES, :
:
Defendant, :
:
AMERICAN FURNITURE MFRS. :
COMM. FOR LEGAL TRADE :
:
Defendant- :
Intervenors :
:
------------------------------x

JUDGMENT

Upon consideration of Plaintiff’s complaint, Defendant’s

motion to dismiss, and all other pertinent papers, and after due

deliberation, it is hereby

ORDERED that Defendant’s motion be granted; and further

ORDERED that this action is dismissed; and it is further

ORDERED that the preliminary injunction be dissolved.

/s/ Donald C. Pogue
Donald C. Pogue
Judge

Dated: February 14, 2007
New York, New York