Mittal Canada, Inc. v. United States

Slip Op. 06-20

UNITED STATES COURT OF INTERNATIONAL TRADE

MITTAL CANADA INC.,

Plaintiff, Before: Richard W. Goldberg,
Senior Judge
v.
Court No. 05-00689
UNITED STATES,

Defendant,

and

GERDAU AMERISTEEL CORP., and
KEYSTONE CONSOLIDATED
INDUSTRIES, INC.,

Defendant-
Intervenors.

OPINION

[Defendant’s motion to dismiss is denied, and plaintiff’s motion
for preliminary injunction is denied.]

Date: February 10, 2006

Cameron & Hornbostel, LLP (Dennis James, Jr.) for Plaintiff
Mittal Canada, Inc.

Peter D. Keisler, Assistant Attorney General; David D. Cohen,
Director, Jeanne E. Davidson, Deputy Director; Commercial
Litigation Branch, Civil Division, U.S. Department of Justice,
(Michael D. Panzera), for Defendant United States.

Collier, Shannon, Scott, PLLC (Mary T. Staley, Paul C.
Rosenthal, and Robin H. Gilbert) for Defendant-Intervenors
Gerdau Ameristeel Corp. and Keystone Consolidated Industries,
Inc.
Court No. 05-00689 Page 2

GOLDBERG, Senior Judge: Before the Court is the motion of

Plaintiff Mittal Canada, Inc. (“Plaintiff”) for a preliminary

injunction under USCIT R. 65(a) to prevent U.S. Customs and

Border Protection (“Customs”) from liquidating Plaintiff’s

entries of steel wire rod entered from October 1, 2004 through

September 30, 2005 (“the Entries”). On December 30, 2005, the

Court granted a temporary restraining order (“TRO”) to enjoin

the liquidations pending the disposition of the preliminary

injunction motion. Underlying the preliminary injunction

request is Plaintiff’s claim that the U.S. Department of

Commerce (“Commerce”) issued liquidation instructions that were

at odds with the final results of a changed circumstances review

initiated by Plaintiff.

Since entry of the TRO, substantial briefing has occurred.

Customs has responded to Plaintiff’s motion for a preliminary

injunction and filed its own motion to dismiss. Plaintiff has

filed a motion in reply to Customs’ response, and in response to

Customs’ motion to dismiss. Customs filed a reply to

Plaintiff’s response to its motion to dismiss. Lastly, Gerdau

Ameristeel Corp. and Keystone Consolidated Industries, Inc.

(collectively, “Defendant-Intervenors”) filed a joint consent

motion to intervene, which the Court granted. Defendant-

Intervenors also filed a reply to Plaintiff’s response to the
Court No. 05-00689 Page 3

motion to dismiss. For the reasons that follow, the Court

denies Customs’ motion to dismiss, and denies Plaintiff’s motion

for a preliminary injunction.

I. BACKGROUND

On October 29, 2002, Commerce issued an antidumping duty

order that applied to certain Canadian steel imports including

the Entries. See Carbon and Certain Alloy Steel Wire Rod from

Canada, 67 Fed. Reg. 65944 (Oct. 29, 2002) (amended final

determination and antidumping duty order) (“the Order”). The

Order contemplated a default weighted-average dumping margin of

8.11 percent that applied to all manufacturers/exporters subject

to investigation that were not explicitly assessed a lower rate.

Specifically, the Order provided that all unliquidated entries

that entered on or after April 10, 2002, and before October 7,

2002, be assessed a duty rate of 8.11 percent. See id. at

65945. For all entries occurring “[o]n or after that date of

publication of [the Order] in the Federal Register, the Customs

service [was instructed to] require . . . a cash deposit equal

to the estimated weighted-average antidumping duty margins as

noted [in the Order].”1 Id. Ispat Sidbec Inc. (“Ispat”) was one

1
Entries made between October 7, 2002 and October 29, 2002 (the
publication date of the Order) were “not liable for the
assessment of antidumping duties due to [Commerce’s] termination
Court No. 05-00689 Page 4

of the Canadian steel manufacturers/exporters entitled to lower

duty assessment and cash deposit rates. See id. Ispat was

subject to a 3.86 percent assessment rate, as well as a 3.86

percent cash deposit rate. Id. In late 2004, Ispat changed its

name to Mittal Canada Inc. Carbon and Certain Alloy Steel Wire

Rod from Canada, 70 Fed. Reg. 22845 (May 3, 2005) (preliminary

results of changed circumstances review) (“Preliminary

Results”). On January 15, 2005, after noticing that Customs was

subjecting its entries to the higher default rate of 8.11

percent, Plaintiff requested a changed circumstances review to

take account of the name change.

On May 3, 2005, Commerce issued its preliminary review of

Plaintiff’s changed circumstance review request. The

Preliminary Results stated that “Mittal is the successor-in-

interest to Ispat.” Id. Commerce also described to Plaintiff

what consequences of a final results affirmance would be:

If the above preliminary results are affirmed in
[Commerce’s] final results, the cash deposit rate most
recently calculated for Ispat will apply to all entries of
subject merchandise by Mittal entered, or withdrawn from
warehouse, for consumption on or after the date of
publication of the final results of this changed
circumstances review.
Id.

of . . . the suspension of liquidation.” Order, 67 Fed. Reg. at
65945.
Court No. 05-00689 Page 5

Commerce’s final determination affirmed the Preliminary

Results. See Carbon and Certain Alloy Steel Wire Rod from

Canada, 70 Fed. Reg. 39484 (July 8, 2005) (final results of

changed circumstances review) (“Final Results”). Specifically,

Commerce determined that “Mittal is the successor-in-interest to

Ispat for antidumping duty cash deposit purposes.” Id. at

39485. The Final Results contained a section entitled

“Instructions to the U.S. Customs and Border Protection” that

appeared immediately after its finding as to the successor-in-

interest issue. In that section, Commerce stated its intention

to follow the course indicated by the Preliminary Results:

“[Commerce] will instruct [Customs] to suspend liquidation of

all shipments of the subject merchandise produced and exported

by Mittal entered, or withdrawn from warehouse, for consumption,

on or after the publication date of this notice at 3.86 percent

(i.e., Ispat’s cash deposit rate).” Id.

On July 25, 2005, Customs published Commerce’s instructions

to notify its directors of field operations and port directors.

See Def.’s Corrected Mot. to Dismiss and Resp. in Opp. to Mot.

for Prelim. Inj., Attach. A (Message No. 5206202 dated July 25,

2005). Those instructions provided that “as a result of [the

changed circumstances] review, [Commerce] find[s] that Mittal

Canada Inc. is the successor in interest to Ispat Sidbec Inc.”
Court No. 05-00689 Page 6

Id. The instructions provided further that “shipments by Mittal

Canada Inc. of carbon alloy and certain steel wire rod from

Canada shall receive the same cash deposit rate as Ispat Sidbec

Inc., for all shipments entered or withdrawn from warehouse, for

consumption on or after July 8, 2005.” Id. Therefore, these

cash deposit instructions did not apply to the Entries, which

had already entered and for which cash deposits had already been

collected.

On December 15, 2005, Customs issued the instructions to

its port directors that constitute the nub of this dispute. The

port officials were “to assess antidumping duties on merchandise

entered, or withdrawn from warehouse, for consumption at the

cash deposit or bonding rate in effect on the date of entry.”

Mem. in Supp. of Pl.’s Mot. for a TRO and Prelim. Inj. Enjoining

Liquidation of Entries, Ex. A (Message No. 5349202 dated Dec.

15, 2005) at 1. For the Entries, “the cash deposit . . . rate

in effect on the date of entry,” id., was the higher 8.11

percent rate. On December 27, 2005, Plaintiff sent a letter to

the Commerce’s Assistant Secretary for Import Administration

requesting that Commerce instruct Customs to assess antidumping

duties at no greater than 3.86 percent, the rate to which Ispat

imports were formerly entitled, and, according to Plaintiff, to

which Plaintiff’s imports were entitled as well. See id., Ex. B
Court No. 05-00689 Page 7

(Letter to Ass. Sec. of Imp. Admin. Re: Request for Correction

of Instructions to Customs/Mittal Canada, Inc. dated Dec. 27,

2005).

Plaintiff then commenced this case on December 30, 2005,

petitioning the Court for a TRO and preliminary injunction to

stop Customs from liquidating the Entries. In its accompanying

memorandum, Plaintiff cited Mukand Int’l, Ltd. v. United States,

29 CIT ___, ___, Slip Op. 05-164, at 15 (Dec. 22, 2005) to

support its position that a TRO was necessary to prevent the

imminent liquidations, because liquidation would strip the

Court’s jurisdiction under 28 U.S.C. § 1581(i) to hear

Plaintiff’s challenge to the instructions. The Court entered

the TRO on the same day as a precaution, and ordered a hearing

on the maintenance of the TRO and imposition of the preliminary

injunction on January 4, 2006.

Customs filed a motion to dismiss for lack of jurisdiction

as well as its response to Plaintiff’s motion for preliminary

injunction on January 3, 2006. The Court held the hearing as

scheduled, after which the parties agreed to an expedited

briefing schedule.

II. THE COURT HAS JURISDICTION UNDER 28 U.S.C. § 1581(i)

Absent jurisdiction, a court may not proceed in any cause,

and must dismiss the case before it. “The requirement that
Court No. 05-00689 Page 8

jurisdiction be established as a threshold matter ‘spring[s]

from the nature and limits of the judicial power of the United

States’ and is ‘inflexible and without exception.’” Steel Co.

v. Citizens for a Better Envm’t, 523 U.S. 83, 94-95 (1988)

(quoting Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 384

(1884)); see also USCIT R. 12(h)(3) (“Whenever it appears . . .

that the court lacks jurisdiction of the subject matter, the

court shall dismiss the action.”).

Moreover, the fact that Plaintiff desires preliminary and

equitable relief does not mean a court can sidestep the

jurisdictional question. In circumstances when the

jurisdictional inquiry is inextricably intertwined with

consideration of the merits, it may be appropriate for a court

to postpone adjudication of the jurisdictional question pending

a thorough examination of the merits. See, e.g., PPG Indus.,

Inc. v. United States, 84 Cust. Ct. 256, C.R.D. 80-5 (1980)

(merger of jurisdictional and merits inquiries is appropriate

where “the evidentiary facts necessary to controvert the

jurisdiction challenged by the defendant concurrently are

necessary in the submission and ultimate determination of the .

. . action on the merits”). In this case, however, subject

matter jurisdiction is not inextricably tied to a proper test of

the strength of Plaintiff’s claim, and merger of the
Court No. 05-00689 Page 9

jurisdictional and merits questions is inappropriate. Instead,

jurisdiction is properly treated as a threshold issue, to be

examined separately and antecedently.

Plaintiff invokes the residual jurisdiction of the U.S.

Court of International Trade (“CIT”) under 28 U.S.C. § 1581(i).

By its terms, 28 U.S.C. § 1581(i) is an expansive grant of

exclusive jurisdiction over certain causes of action against the

government:

[The CIT] 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;

(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.

28 U.S.C. § 1581(i) (1999).

A lodestar of the CIT’s jurisdictional jurisprudence is

that a plaintiff may not pursue an action under 28 U.S.C. §

1581(i) if any other subsection of 28 U.S.C. § 1581 “is or could
Court No. 05-00689 Page 10

have been available, unless the remedy provided under that other

subsection would be manifestly inadequate.” Miller & Co. v.

United States, 824 F.2d 961, 963 (Fed. Cir. 1987), cert. denied,

484 U.S. 1041 (1988). Thus, if Plaintiff could have obtained

its relief under any other subsection of 28 U.S.C. § 1581, then

the Court must immediately dismiss the case for lack of subject

matter jurisdiction.

Before the Court may assert jurisdiction over the subject

matter, it must identify the claim on which Plaintiff seeks

relief. In most cases, this exercise is routine; however, this

case requires a more searching examination because the parties

disagree as to the characterization of Plaintiff’s claim.

Plaintiff contends it is challenging Commerce’s liquidation

instructions as arbitrary and capricious or otherwise not in

accordance with law. Customs paints Plaintiff’s request in a

different light, arguing that Plaintiff is really seeking a

substantive review of the changed circumstances review.

Plaintiff believes that Commerce’s liquidation

instructions, because they instructed Customs to liquidate the

Entries at the cash deposit rate, failed to take into account

the legal fact that “Mittal is the successor-in-interest to

Ispat for antidumping duty cash deposit purposes.” Final

Results, 70 Fed. Reg. at 39485. Plaintiff insists that, despite
Court No. 05-00689 Page 11

the Final Results’ expressly limited application to “antidumping

duty cash deposit purposes[,]” id., the determination of

successor-in-interest status required Commerce to assess the

lower 3.86 percent rate to all of Plaintiff’s unliquidated

entries, including those for which the 8.11 percent duty cash

deposit had been required. In Plaintiff’s view, then, the Final

Results articulated a broad legal principle that has collateral

effects beyond the express limitation of its language, and when

Commerce does not recognize those effects and instruct Customs

accordingly, it acts in contravention of law.

Customs, on the other hand, urges the Court to construe

Plaintiff’s complaint as a belated attempt to obtain the

judicial review of the changed circumstances review that would

have been available under 28 U.S.C. § 1581(c). In other words,

Customs argues that Plaintiff is attempting to dress up a

routine § 1581(c) claim in such a way as to avoid § 1581(i)’s

jurisdictional bar in cases where 28 U.S.C. § 1581(c) was

available, but not invoked.

The language of 28 U.S.C. § 1581(i) fits Plaintiff’s

version of the case like a glove. After all, 28 U.S.C. §

1581(i)(4) includes civil actions against the United States

relating to the “administration and enforcement” of “duties.”

28 U.S.C. § 1581(i)(4) (1999). Moreover, several decisions of
Court No. 05-00689 Page 12

the U.S. Court of Appeals for the Federal Circuit (“Federal

Circuit”) establish that a plaintiff may invoke 28 U.S.C. §

1581(i) to test the legality of instructions that are alleged to

contravene determinations made in an administrative review.

See, e.g., Shinyei Corp. of Am. v. United States, 355 F.3d 1297,

1305 (Fed. Cir. 2004); Consol. Bearings Co. v. United States,

348 F.3d 997, 1002 (Fed. Cir. 2003); cf. Mitsubishi Elecs. Am.

v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994) (suggesting

that CIT had jurisdiction to hear plaintiff’s claim that

liquidation instructions conflicted with final antidumping

order). In those cases, the Federal Circuit has affirmed that

the CIT possesses residual jurisdiction to hold Commerce

accountable for the execution of its determinations arising from

administrative reviews.2 Residual jurisdiction is appropriate in

2
The cited cases dealt with non-compliance with administrative
reviews, which violated explicit regulatory and statutory
provisions requiring the results of administrative reviews to be
“the basis for the assessment of . . . antidumping duties on
entries of merchandise covered by the determination and for
deposits of estimated duties.” 19 U.S.C. § 1675(a)(2)(C)
(1999); see also 19 C.F.R. § 351.212(b)(1) (2005). Under 19
C.F.R. § 351.221, the general regulation governing review
procedures, the same principle applies to changed circumstances
reviews. That regulation directs Commerce to “promptly after
publication of the notice of final results instruct the Customs
Service to assess antidumping duties . . . on the subject
merchandise covered by the review . . . .” Id. § 351.221(b)(6).
If Commerce fails to instruct Customs accordingly, it withholds
or delays the execution of its administrative duty, and the CIT
Court No. 05-00689 Page 13

those cases because a challenge to liquidation instructions as

not in accordance with an administrative review determination is

not enumerated among the “reviewable determinations” of 19

U.S.C. § 1516a that form the basis for the CIT’s 28 U.S.C. §

1581(c) jurisdiction. See 19 U.S.C. § 1516a(a)(2)(B) (1999).

On the other hand, it is equally straightforward that

should the Court construe Plaintiff’s claim as a belated request

for judicial review of the Final Results, the case must be

dismissed. 28 U.S.C. § 1581(c) grants the CIT “exclusive

jurisdiction of any civil action commenced under [19 U.S.C. §

1516a].” 28 U.S.C. § 1581(c) (1999). 19 U.S.C. § 1516a, in

turn, permits plaintiffs to seek review of “[a] final

determination . . . under [19 U.S.C. § 1675].” 19 U.S.C. §

1516a(a)(2)(B)(iii) (1999). One of the “final determinations”

that Commerce makes under 19 U.S.C. § 1675 is a review “based on

changed circumstances.” Id. § 1675(b). Therefore, because

Plaintiff could have brought the matter before the Court under

28 U.S.C. § 1581(c), the Court would have no residual

jurisdiction over such a claim.

A thorough examination of Plaintiff’s motion for

preliminary injunction and accompanying papers reveals that

must compel the issuance of correct instructions, see 5 U.S.C. §
706(1) (1999).
Court No. 05-00689 Page 14

Plaintiff is challenging the liquidation instructions as

violative of the legal conclusion, embodied in the Final

Results, that Plaintiff is the a successor-in-interest to Ispat.

Because the Court has 28 U.S.C. § 1581(i) jurisdiction over

civil actions that challenge Commerce’s issuance of liquidation

instructions at odds with its own determinations, see Consol.

Bearings, 348 F.3d at 1002, the Court must deny Customs’ motion

to dismiss for lack of subject matter jurisdiction. In short,

Plaintiff is not challenging the Final Results, so there can not

be, nor could there ever have been, jurisdiction under 28 U.S.C.

§ 1581(c). Instead, this suit is about the “‘administration and

enforcement’ of those final results.” Id. (quoting 28 U.S.C. §

1581(i)).

The only puzzling aspect of the jurisdictional question is

Plaintiff’s prior decision not to contest the Final Results

before such an appeal became time-barred.3 Instead of timely

3
A plaintiff has thirty days after the date of publication of a
Commerce determination in the Federal Register within which to
contest that determination in the CIT. See 19 U.S.C. § 1516a(b)
(1999). As such, Plaintiff had until August 8, 2005 to commence
a case under 28 U.S.C. § 1581(c). Furthermore, Plaintiff slept
on its rights by not filing a case brief, see 19 C.F.R. §
351.309(c)(ii), within thirty days after publication of the
Preliminary Results on May 3, 2005. The Preliminary Results
were clear: the changed circumstances review looked only to the
cash deposit rate, and not the assessment rate. At both those
points, Plaintiff could have brought to Commerce’s attention
that it was seeking a more robust form of retroactive relief.
Court No. 05-00689 Page 15

contesting the Final Results in the CIT so as to obtain clear

language that would have mandated assessment of the 3.86 percent

duty rate, Plaintiffs are now alleging Commerce’s liquidation

instructions contravene the Final Results determination. That

argument in effect maintains that the uncontested and

unambiguous Final Results mean something different than what

they say. Clearly, the Court possesses residual jurisdiction

over such a novel argument, but Plaintiff’s victory on the

jurisdictional issue is pyrrhic.

Since 28 U.S.C. § 1581(c) relief was time-barred, Plaintiff

has chosen to pursue another remedial method designed to obtain

the identical substantive result (i.e., assessment of duties at

3.86 percent) by different means. By fashioning its dispute as

a challenge to defective liquidation instructions, Plaintiff has

defined its claim such that the Court has jurisdiction. In the

process, however, it has presented a tenuous argument that, for

the following reasons, would make preliminary injunctive relief

inappropriate.

III. PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION IS DENIED

A preliminary injunction is “extraordinary relief,” FMC

Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993), that

should be granted sparingly. However, there are circumstances

that can, and often do, justify injunctive relief before trial.
Court No. 05-00689 Page 16

A court may enter a preliminary injunction when the movant has

established (1) that it will suffer irreparable harm if relief

is not granted; (2) that the public interest would be better

served by the relief requested; (3) that the balance of the

hardships tips in the movant’s favor; and (4) that the movant is

likely to succeed on the merits at trial. See id. (citing

Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.

Cir. 1983)).

In deciding whether to grant a preliminary injunction the

CIT has a good deal of discretion. See id. (citing Chrysler

Motors Corp. v. Auto Body Panels, Inc., 908 F.2d 951, 953 (Fed.

Cir. 1990)); Asociación Colombiana de Exportadores de Flores v.

United States, 916 F.2d 1571, 1578 (Fed. Cir. 1990). Courts

have adopted a flexible approach in dealing with motions for

preliminary injunctions. In some instances, the weakness of a

showing of one factor may be overborne by the strength of

others. See FMC Corp., 3 F.3d at 427. In other circumstances,

the weakness of a showing of one factor may justify denial of

the preliminary injunction motion. Id.

In particular, the likelihood of success and the

irreparable harm prongs “are viewed as a ‘continuum in which the

required showing of harm varies inversely with the required

showing of meritoriousness.’” U.S. Ass’n of Imp.’s of Textiles
Court No. 05-00689 Page 17

and Apparel v. U.S. Dep’t of Commerce, 413 F.3d 1344, 1347 (Fed.

Cir. 2005) (quoting Mikohn Gaming Corp. v. Acres Gaming, Inc.,

165 F.3d 891, 895 (Fed. Cir. 1998)). Thus, a convincing

demonstration of irreparable harm will diminish the required

burden of showing a likelihood of success on the merits. When

irreparable harm is shown, a party need not show a likelihood of

success; a showing of “a fair chance” of prevailing on the

merits may entitle the moving party to preliminary injunctive

relief.4 See Atari Games Corp. v. Nintendo of Am., Inc., 897

F.2d 1572, 1577 (Fed. Cir. 1990).

Diminishing the burden of proof required does not, however,

obviate the movant’s burden to show some real possibility of

success on the merits. See FMC Corp., 3 F.3d at 427. A court

may not enter a preliminary injunction, even where the

4
The U.S. Association of Importers decision adverts the CIT to
an ambiguity in the preliminary injunction jurisprudence. See
U.S. Ass’n of Imp.’s, 413 F.3d at 1347-48. In particular, it is
unclear what precedential weight the Mikohn and Atari Games
decisions, which were patent cases applying Ninth Circuit law,
have in the context of CIT cases. As a result, it is unclear
whether the “fair chance” standard should apply to customs and
trade plaintiffs seeking preliminary injunctions against the
government. Because the Court concludes that Plaintiff has
failed to meet its burden even under the liberal “fair chance”
standard, this ambiguity does not affect the disposition of
Plaintiff’s motion.
Court No. 05-00689 Page 18

irreparable harm is conspicuous and serious,5 if the court is

convinced that the movant stands no chance of success on its

underlying claim. See AM Gen. Corp. v. DaimlerChrysler Corp.,

311 F.3d 796, 804 (7th Cir. 2002) (“A party with no chance of

success on the merits cannot attain a preliminary injunction.”);

Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 417

(4th Cir. 1999).

In this case, the Court is unable to grant a preliminary

injunction because Plaintiff has failed to meet its burden to

show either a “likelihood of success on the merits,” U.S. Ass’n

of Imp.’s, 413 F.3d at 1346, or even a “fair chance” that its

5
The Court ultimately denies the motion for preliminary
injunction because Plaintiff stands little, if any, chance on
the merits of its underlying claim, so its decision would be the
same even if irreparable harm were present. However, it bears
mention that irreparable harm is not present in this case
either. Plaintiff’s alleged harm — its losing a statutory right
to obtain judicial review of the liquidation instructions upon
liquidation — is illusory. The Federal Circuit has held that in
cases where a plaintiff brings a suit challenging liquidation
instructions’ compliance with Commerce determinations, the CIT
has 28 U.S.C. § 1581(i) jurisdiction to evaluate such a claim,
even where the relevant entries are liquidated during the
pendency of the case. See Shinyei, 355 F.3d at 1297-1303.
Plaintiff’s reliance on Zenith Radio is misplaced because in
that case, the denial of preliminary injunctive relief would
have foreclosed relief to which the plaintiff was otherwise
entitled: namely, its right to have a favorable CIT decision
apply to its already-entered merchandise. In this case, as in
Shinyei, Plaintiff has already preserved its 28 U.S.C. § 1581(i)
challenge to the liquidation instructions. As such, denial of
the preliminary injunction should not disturb Plaintiff’s
ability to challenge the instructions after liquidation, and
Plaintiff is not threatened with serious harm.
Court No. 05-00689 Page 19

underlying claim will succeed, id. at 1347. Even after

extensive briefing, Plaintiff has provided no support for its

novel contention that a final changed circumstances

determination finding that one producer is the successor-in-

interest to another producer “for antidumping duty cash deposit

purposes,” Final Results, 70 Fed. Reg. at 39485, articulates a

broader commitment by Commerce to treat that producer as such

for duty assessment purposes as well. “[M]ere novelty is [not]

sufficient to demonstrate a fair chance of success” on the

merits of a claim. U.S. Ass’n of Imp.’s, 413 F.3d at 1347.

A close look at the U.S. antidumping duty assessment

regulations and procedures demonstrates why the Final Results

limited the application of the successor-in-interest

determination to cash deposits, and why therefore Plaintiff’s

argument that Commerce was obliged to include assessment

instructions is untenable. The United States utilizes a

“retrospective” duty assessment system under which importers’

final liabilities are determined after the actual importation of

the merchandise. See 19 C.F.R. § 351.212 (2005). Importers

entering merchandise subject to an antidumping duty order are

required to make a cash deposit of estimated antidumping duties

at the rates included in the final results determination of an

antidumping investigation. See id. § 351.211(b)(2). Unless the
Court No. 05-00689 Page 20

importer files a request for an administrative review,6 those

entries will be liquidated (and those duties will be assessed)

at the deposit rate that applied at the time the merchandise was

entered. See id. § 351.212(a). Commerce processes these

entries by issuing “clean-up” instructions, see Shinyei, 355

F.3d at 1303, directing Customs to liquidate all unliquidated

entries “as entered.” This process is referred to as “automatic

liquidation,” see Okaya (USA), Inc. v. United States, 27 CIT

___, ___, Slip Op. 03-130 at 3 (Oct. 3, 2003), and ensures the

smooth functioning of the “retrospective” system. Notably,

there is no analogous exception to automatic liquidation for

changed circumstance reviews. See 19 C.F.R. § 351.212(b).

An importer may request an administrative review when it

believes the cash deposit rate collected at entry should not be

the assessment rate. The administrative review typically looks

backward twelve months, see id. § 351.213(e), and permits an

importer to recoup the excess duties deposited by halting the

automatic liquidation process and allowing Commerce to take

account of specific information provided by the importers

requesting the review. The duty collection system is imprecise

and relies on efficient transfer of information from interested

6
Two other exceptions exist for new shipper reviews, see 19
C.F.R. § 351.214, and expedited antidumping reviews, see id. §
351.215. Neither procedure is relevant to this case.
Court No. 05-00689 Page 21

parties to Commerce to achieve an accurate final result; to this

end, the administrative review process is “the most frequently

used procedure” for apprising Commerce of relevant facts needed

to “determin[e] final duty liability[.]” Id. § 351.213(a). The

regulations also provide guidance for Commerce in computing new

assessment rates and instruct Customs to liquidate at those

rates the merchandise subject to administrative review. See id.

§ 351.212(b).

The changed circumstances review similarly allows

interested parties to petition Commerce for review of a final

determination. See 19 U.S.C. § 1675(b)(1) (1999). The party

seeking a revocation or modification of an antidumping order

bears the burden of persuasion with respect to whether changed

circumstances warrant such revocation or modification. See id.

§ 1675(b)(3)(A). Most important for the purposes of this case,

however, is the fact that unlike an administrative review, a

changed circumstances review does not halt the automatic

liquidation process by causing Commerce to recalculate

assessment rates in the case of an affirmative determination.

In the past, Commerce has modified assessment orders during

changed circumstances reviews. See, e.g., Leather from

Argentina, Wool from Argentina, Oil Country Tubular Goods from

Argentina, and Carbon Steel Cold-Rolled Flat Products from
Court No. 05-00689 Page 22

Argentina, 62 Fed. Reg. 41361 (Dep’t Commerce Aug. 1, 1997)

(final results of changed circumstances reviews) (providing

retroactive relief by ordering all unliquidated merchandise

entered within six years of publication date to be liquidated

without regard to the countervailing duty orders then in place).

However, such modification of assessment rates does not arise

automatically as a result of a changed circumstances review; an

interested party must make a specific demand that Commerce

instruct Customs to assess different rates for entries as to

which estimated duties have already been deposited.

In this case, Plaintiff made no such demand. Plaintiff

“requested that [Commerce] determine that it had become the

successor-in-interest of Ispat[.]” Preliminary Results, 70 Fed.

Reg. at 22845. Commerce, in its Preliminary Results,

unambiguously limited the scope of the changed circumstances

review to cash deposit rates, and never addressed the

possibility that merchandise entered before the changed

circumstances review was entitled to the lower Ispat assessment

rate: “If the above preliminary results are affirmed in the

Department’s final results, the cash deposit rate most recently

calculated for Ispat will apply to all entries of subject

merchandise by Mittal entered, or withdrawn from warehouse, for

consumption on or after the date of publication of the final
Court No. 05-00689 Page 23

results of this changed circumstances review.” Id. (emphasis

added).

The Final Results also focused exclusively on the narrow

issue of cash deposit rates: “Based on the information provided

by Mittal, and the fact that the Department did not receive any

comments during the comment period following the preliminary

results of this review, the Department hereby determines Mittal

is the successor-in-interest to Ispat for antidumping duty cash

deposit purposes.” 70 Fed. Reg. at 39485 (emphasis added).

Commerce then indicated its intention to

instruct [Customs] to suspend liquidation of all shipments
of the subject merchandise produced and exported by Mittal
entered, or withdrawn from warehouse, for consumption, on
or after the publication date of this notice at 3.86
percent (i.e., Ispat’s cash deposit rate). This deposit
rate shall remain in effect until publication of the final
results of the ongoing administrative review . . . .

Id. Both the Preliminary Results and Final Results plainly

address the treatment of Plaintiff’s cash deposit rate, and not

its assessment rate.

There are no broader conclusions to be divined out of the

pellucid Final Results. The changed circumstances review

addressed the cash deposit rate treatment of Plaintiff’s

merchandise. It seems Plaintiff came to an idiosyncratic

interpretation of the Final Results, did nothing to convince

Commerce of the correctness of such an interpretation, and
Court No. 05-00689 Page 24

assumed that Commerce would do something equally idiosyncratic

by adopting Plaintiff’s interpretation. Plaintiff could have

petitioned Commerce for a more explicit form of retroactive duty

assessment for already-entered merchandise; instead, it

acquiesced to the Final Results’ implicit refusal to grant any

such relief. Of course, the automatic liquidation instructions

eventually arrived for the Entries, and now Plaintiff is seeking

to vindicate its erroneous interpretation before the Court.

Because the changed circumstances review did not address

the treatment of the Entries at the time of duty assessment, the

automatic liquidation system required that duties be assessed at

“the cash deposit rate applicable at the time merchandise was

entered[,]” 19 C.F.R. § 351.212(a), which was 8.11 percent.

These liquidation instructions were in harmony with the

statutory and regulatory requirements regarding the assessment

of antidumping duties. Because Plaintiff stands little, if any,

chance of prevailing on its underlying claim, the Court must

deny Plaintiff’s motion for a preliminary injunction.

IV. CONCLUSIONS

In light of the foregoing considerations, Customs’ motion

to dismiss for lack of subject matter jurisdiction is denied.

Plaintiff’s motion for a preliminary injunction is also denied.
Court No. 05-00689 Page 25

A separate order will issue in accordance with these

conclusions.

/s/ Richard W. Goldberg
Richard W. Goldberg
Senior Judge

Date: February 10, 2006
New York, NY