Opinion
Eogue, Judge:
This case is before the court on motions for summary judgment. The principal issue is whether the court has jurisdiction to [141]*141hear plaintiffs claim that the United States Customs Service (“Customs”) wrongfully assessed antidumping duties on certain imported merchandise allegedly outside the scope of an antidumping duty order.
Background
Plaintiff made six entries of steel tubing from Sweden between December 19,1989 and November 20,1990. Customs suspended their liquidation upon importation. On October 2, 1992, Customs liquidated a different entry of plaintiffs composite tubes and collected both anti-dumping and regular customs duties. Between July 1,1993 and September 17,1993 Customs liquidated the six suspended entries and collected regular customs duties of 8.0 percent ad valorem and antidumping duty deposits of20.47 percent ad valorem, plus accrued interest. These seven entries, (the six plus the Oct. 2, 1992 entry), were apparently the only entries for which Customs collected antidumping duties on plaintiffs importation of composite tubes.1 Plaintiff believed that its merchandise was beyond the scope of the antidumping duty order, and filed protests with Customs challenging the assessments. The protests were denied on July 7, 1995.
The antidumping duty order covered:
[S]tainless steel hollow products including pipes, tubes, hollow bars and blanks therefor, of circular cross section, containing over 11.5 percent chromium by weight, as provided for under the Harmonized System (HS) of Customs nomenclature item numbers 7304.41.00.00 and 7304.49.00.00.
52 Fed. Reg. 45,985 (Dep’t Comm. Dec. 3,1987) (antidumping duty order). Plaintiffs merchandise consists of seamless composite tubes. A composite tube is a carbon steel “inner” tube that has an outer covering or coating made of stainless steel. The carbon steel “inner” portion of the tube constitutes 75 percent of the weight of the entire tube. The stainless steel “outer” portion constitutes the other 25 percent of the tube’s weight. Chromium constitutes 18 to 19 percent of the weight of the stainless steel portion of a composite tube. Thus the stainless steel portion of a composite tube accounts for only 25 percent of the weight of the entire tube, and the entire tube contains less than 5 percent chromium by weight. For the six entries that are the subject of this action, both Customs and plaintiff classified the product as a cold-drawn, seamless, nonalloy steel tube under HTSUS item number 7304.31.60.50. Plaintiff claims that the merchandise is beyond the scope of the anti-dumping duty order because the merchandise contains less than 5 percent chromium by weight of the entire tube and the merchandise is not classified under either 7304.41.00.00 or 7304.49.00.00, HTSUS, which are the two headings directly identified in the order.
[142]*142Discussion
The gravamen of plaintiffs complaint is that the antidumping duty order2 does not cover plaintiffs composite tubes. Plaintiff seeks to invoke the court’s jurisdiction under 28 U.S.C. § 1581(a)3 or alternatively under 28 U.S.C. § 1581 (i)4 to have the Court review the scope of the anti-dumping duty order de novo and determine whether its merchandise falls within the order’s scope. Defendant contends that plaintiff should have sought a scope determination from the United States Department of Commerce (“Commerce”), see 19 C.F.R. 353.29, which then could have been reviewed in this court under 28 U.S.C. § 1581(c).5
The question before the court is the proper jurisdictional basis for plaintiffs suit and which of three jurisdictional provisions, 28 U.S.C. § 1581(a), (c), or (i), if any, covers plaintiffs case. The difficulty posed by the present case is that Customs ab initio did not assess antidumping duties on plaintiffs composite tubes. Plaintiff challenges Customs’ change of course, made without any apparent direction from Commerce, and the inclusion of its merchandise within the scope of the anti-dumping duty order.
The Court of International Trade reviews scope determinations under 28 U.S.C. § 1581(c) and 19U.S.C. § 1516a(2)(B)(vi);see, e.g., Springwater Cookie & Confections Inc., v. United States, slip op. 96-160 (September 25, 1996)(reviewing scope determination by Commerce). Through a scope determination, Commerce interprets an antidumping duty order and determines whether certain products fall within its scope. See 19 C.F.R. § 353.29; Ericsson GE Mobile Communications, Inc. v. United States, 60 F.3d 778, 783 (Fed. Cir. 1995)(“the Commerce Department is responsible for interpreting the antidumping duty order and determining whether certain products fall within the scope of the order as interpreted.”). A scope determination can be initiated by Commerce (the International Trade Administration), 19 C.F.R. § 353.29(a), or by the application of an interested party, 19 C.F.R. § 353.29(b). The [143]*143application contains detailed information which Commerce considers in determining whether a scope inquiry is warranted. Id. If no inquiry is warranted, Commerce “issues a final ruling as to whether the merchandise which is the subject of the application is included in the existing order.” Id. If a scope inquiry is warranted, Commerce requests comments from all interested parties, and subsequently issues its determination. Id. Liquidation is suspended pending “a preliminary or final scope ruling.” 19 C.F.R. § 353.29(j)(l).
The Court of International Trade reviews Commerce’s scope determinations to judge whether they are in accordance with law and supported by substantial evidence. See 19 U.S.C. § 1516a(b)(l)(B)(1994).
Upon assessment of the antidumping duties in issue, plaintiff did not request a scope determination from Commerce. Instead, plaintiff protested Customs’ assessment of antidumping duties, and commenced this action when Customs denied its protests, asserting jurisdiction under 28 U.S.C. § 1581(a) or (i).
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion
Eogue, Judge:
This case is before the court on motions for summary judgment. The principal issue is whether the court has jurisdiction to [141]*141hear plaintiffs claim that the United States Customs Service (“Customs”) wrongfully assessed antidumping duties on certain imported merchandise allegedly outside the scope of an antidumping duty order.
Background
Plaintiff made six entries of steel tubing from Sweden between December 19,1989 and November 20,1990. Customs suspended their liquidation upon importation. On October 2, 1992, Customs liquidated a different entry of plaintiffs composite tubes and collected both anti-dumping and regular customs duties. Between July 1,1993 and September 17,1993 Customs liquidated the six suspended entries and collected regular customs duties of 8.0 percent ad valorem and antidumping duty deposits of20.47 percent ad valorem, plus accrued interest. These seven entries, (the six plus the Oct. 2, 1992 entry), were apparently the only entries for which Customs collected antidumping duties on plaintiffs importation of composite tubes.1 Plaintiff believed that its merchandise was beyond the scope of the antidumping duty order, and filed protests with Customs challenging the assessments. The protests were denied on July 7, 1995.
The antidumping duty order covered:
[S]tainless steel hollow products including pipes, tubes, hollow bars and blanks therefor, of circular cross section, containing over 11.5 percent chromium by weight, as provided for under the Harmonized System (HS) of Customs nomenclature item numbers 7304.41.00.00 and 7304.49.00.00.
52 Fed. Reg. 45,985 (Dep’t Comm. Dec. 3,1987) (antidumping duty order). Plaintiffs merchandise consists of seamless composite tubes. A composite tube is a carbon steel “inner” tube that has an outer covering or coating made of stainless steel. The carbon steel “inner” portion of the tube constitutes 75 percent of the weight of the entire tube. The stainless steel “outer” portion constitutes the other 25 percent of the tube’s weight. Chromium constitutes 18 to 19 percent of the weight of the stainless steel portion of a composite tube. Thus the stainless steel portion of a composite tube accounts for only 25 percent of the weight of the entire tube, and the entire tube contains less than 5 percent chromium by weight. For the six entries that are the subject of this action, both Customs and plaintiff classified the product as a cold-drawn, seamless, nonalloy steel tube under HTSUS item number 7304.31.60.50. Plaintiff claims that the merchandise is beyond the scope of the anti-dumping duty order because the merchandise contains less than 5 percent chromium by weight of the entire tube and the merchandise is not classified under either 7304.41.00.00 or 7304.49.00.00, HTSUS, which are the two headings directly identified in the order.
[142]*142Discussion
The gravamen of plaintiffs complaint is that the antidumping duty order2 does not cover plaintiffs composite tubes. Plaintiff seeks to invoke the court’s jurisdiction under 28 U.S.C. § 1581(a)3 or alternatively under 28 U.S.C. § 1581 (i)4 to have the Court review the scope of the anti-dumping duty order de novo and determine whether its merchandise falls within the order’s scope. Defendant contends that plaintiff should have sought a scope determination from the United States Department of Commerce (“Commerce”), see 19 C.F.R. 353.29, which then could have been reviewed in this court under 28 U.S.C. § 1581(c).5
The question before the court is the proper jurisdictional basis for plaintiffs suit and which of three jurisdictional provisions, 28 U.S.C. § 1581(a), (c), or (i), if any, covers plaintiffs case. The difficulty posed by the present case is that Customs ab initio did not assess antidumping duties on plaintiffs composite tubes. Plaintiff challenges Customs’ change of course, made without any apparent direction from Commerce, and the inclusion of its merchandise within the scope of the anti-dumping duty order.
The Court of International Trade reviews scope determinations under 28 U.S.C. § 1581(c) and 19U.S.C. § 1516a(2)(B)(vi);see, e.g., Springwater Cookie & Confections Inc., v. United States, slip op. 96-160 (September 25, 1996)(reviewing scope determination by Commerce). Through a scope determination, Commerce interprets an antidumping duty order and determines whether certain products fall within its scope. See 19 C.F.R. § 353.29; Ericsson GE Mobile Communications, Inc. v. United States, 60 F.3d 778, 783 (Fed. Cir. 1995)(“the Commerce Department is responsible for interpreting the antidumping duty order and determining whether certain products fall within the scope of the order as interpreted.”). A scope determination can be initiated by Commerce (the International Trade Administration), 19 C.F.R. § 353.29(a), or by the application of an interested party, 19 C.F.R. § 353.29(b). The [143]*143application contains detailed information which Commerce considers in determining whether a scope inquiry is warranted. Id. If no inquiry is warranted, Commerce “issues a final ruling as to whether the merchandise which is the subject of the application is included in the existing order.” Id. If a scope inquiry is warranted, Commerce requests comments from all interested parties, and subsequently issues its determination. Id. Liquidation is suspended pending “a preliminary or final scope ruling.” 19 C.F.R. § 353.29(j)(l).
The Court of International Trade reviews Commerce’s scope determinations to judge whether they are in accordance with law and supported by substantial evidence. See 19 U.S.C. § 1516a(b)(l)(B)(1994).
Upon assessment of the antidumping duties in issue, plaintiff did not request a scope determination from Commerce. Instead, plaintiff protested Customs’ assessment of antidumping duties, and commenced this action when Customs denied its protests, asserting jurisdiction under 28 U.S.C. § 1581(a) or (i).
The Court of International Trade has section 1581(a) jurisdiction over denials by Customs of protests filed under 19 U.S.C. § 1515.6 The subject matter of section 1515 protests is prescribed by 19 U.S.C. § 1514(a), which lists seven categories of protestable Customs decisions.7 At the same time, section 1514(b) of the statute states:
With respect to determinations made under section 1303 of this title or subtitle IV [containing the antidumping laws] of this chapter which are reviewable under section 1516a of this title, determinations of the appropriate customs officer are final and conclusive upon all persons (including the United States and any officer thereof) unless a civil action contesting a determination listed [144]*144in 1516a of this title is commenced in the United States Court of International Trade * * *.
19 U.S.C. § 1514(b)(1994). Section 1516a, referenced in section 1514(b), enumerates several types of determinations that are reviewable in the Court of International Trade under 28 U.S.C. § 1581(c), one of which is “[a] determination by the administering authority [Commerce] as to whether a particular type of merchandise is within the class or kind of merchandise described in an * * * antidumping * * * duty order.” 19 U.S.C. §1516a(2)(b)(vi). This provision mirrors the substantive issue raised by plaintiffs complaint. When this provision is read in conjunction with section 1514(b), it is apparent that unless there is a request for a scope determination from Commerce, Customs’ decision concerning the scope of an antidumping duty order is “final and conclusive.” 19 U.S.C. § 1514(b); see also Fujitsu Ten Corp. of Am. v. United States, slip op. 97-11 at 5-7 (January 29, 1997) (explaining the operation of 19 U.S.C. §§ 1514(b), 1516a(a)(2)(B)(iv), and 1514(a)).
A suit challenging Customs’ inclusion of merchandise within the scope of an antidumping duty order does not fall within the purview of section 1514(a). See Fujitsu Ten, at 7. Therefore, it cannot be challenged under the protest procedure. Rather, by operation of section 1514(b), that scope challenge must be made before Commerce, and subsequently, an action commenced in the Court of International Trade under 28 U.S.C. § 1581(c). I'd. Failure to follow that procedure renders a Customs decision concerning the scope of an antidumping order “final and conclusive. ” Id. Section 1581 (c) affords the exclusive judicial remedy to contest such a decision, after the administrative procedure of a scope determination has been exhausted. Id.
Plaintiff had an opportunity to request a scope ruling from Commerce when it learned that antidumping duties were being assessed on its entries. Liquidation was suspended for the entries covered by the protests formingthe basis of plaintiff s claim. Duringthat period plaintiff should have requested a scope determination from Commerce, a remedy available to plaintiff as an interested party. See 19 C.F.R §§ 353.29(b); 353.2(k)(l). In addition, another entry of plaintiff was liquidated with antidumping duties on October 2,1992, fully 10 months before the other entries were liquidated. Again, plaintiff had an opportunity to request a scope determination. Any request would have suspended liquidation pending a preliminary or final scope ruling from Commerce. See 19 C.F.R. § 353.29(j)(l). In the event plaintiff sought judicial review of Commerce’s determination, the scope of the court’s review would then have been consistent with the statute.8 See 19 U.S.C. § 1516a(b)(l)(B)(1994).
Although Customs’ change of course in this case amounted to a unilateral “dumping” decision seemingly inconsistent with a legal frame[145]*145work that vests authority for scope determinations in Commerce, see 19 C.F.R. § 353.29, see also Mitsubishi Elec. Am., Inc. v. United States, 44 F.3d 973, 976-977 (Fed. Cir 1994)(“Customs merely follows Commerce’s instructions in assessing and collecting [antidumping] duties.”), plaintiffs request for a scope determination would have suspended liquidation of its merchandise and also would have mooted any adverse consequence of an erroneous interpretation of the antidumping duty order by Customs. Thus, a request for a scope determination under 19 C.F.R. § 353.29 afforded plaintiff an available administrative remedy that would have provided complete relief.9
The Court’s residual jurisdiction provision, 28 U.S.C. § 1581(i), “provides a jurisdictional basis for challenges not covered by other subsections of section 1581.” Mitsubishi, 44 F.3d at 977. The statute of limitations requires that section 1581 (i) actions be brought within two years after accrual of the cause of action, 28 U.S.C. § 2636(i) (1994), and a claim accrues when “the aggrieved party reasonably should have known about the existence of the claim. ” St. Paul Fire & Marine Ins. Co. v. United States, 959 F.2d 960, 964 (Fed. Cir. 1992). Moreover, an unnecessary section 1514 administrative protest does not toll the statute of limitations for a suit commenced under section 1581(i). See Mitsubishi, 44 F.3d at 978. Finally, “[sjection 1581(i) jurisdiction may not be invoked when jurisdiction under another subsection of section 1581 is or could have been available, unless the remedy provided under that other subsection would be manifestly inadequate.” Miller & Co. v. United States, 5 Fed. Cir. (T) 122, 124, 824 F.2d 961, 963 (1987).
Consequently, in this case, jurisdiction under section 1581 (i) will not lie for two reasons: There was an adequate remedy available to the plaintiff under 1581(c); and, the suit was time barred. The last entry in issue was liquidated on September 17, 1993. Plaintiffs claim for that entry accrued on that date. This action was commenced on January 3, 1996, when the complaint was filed with the Court, see USCIT Rule 3(a)(3), more than two years after accrual of the claim. Hence, plaintiffs suit under 1581(i), if proper, was not timely commenced.
Conclusion
As the court does not have jurisdiction under either 28 U.S.C. § 1581(a) or (i), the action must accordingly be dismissed.