                          Slip Op 09-15

           UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Nicholas Tsoucalas, Senior Judge
________________________________________
                                        :
SAHAVIRIYA STEEL INDUSTRIES PUBLIC      :
COMPANY LIMITED,                        :
                                        :
          Plaintiff,                    :
                                        :
          v.                            :
                                        :      Court No. 08-00353
UNITED STATES,                          :
                                        :
          Defendant,                    :
                                        :
          and                           :
                                        :
UNITED STATES STEEL CORPORATION,        :
                                        :
          Defendant-Intervenor.         :
________________________________________:

                             OPINION

Held: Defendant and Defendant-Intervenor’s motions for dismissal
for lack of subject matter jurisdiction and lack of ripeness are
granted. Plaintiff’s motion for preliminary injunction is denied.

                                            Dated: February 24, 2009

     Hughes Hubbard & Reed LLP, (Kenneth J. Pierce, Robert L.
LaFrankie, Victor S. Mroczka) for Sahaviriya Steel Industries
Public Company Limited, Plaintiff.

     Michael F. Hertz, Deputy Assistant Attorney General; Jeanne E.
Davidson, Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Patricia M. McCarthy,
Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice; Jane C. Dempsey, Trial
Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice; Of Counsel: Aaron P. Kleiner, Office
of Chief Counsel for Import Administration, United States
Department of Commerce, for the United States, Defendant.
Court No. 08-00353                                                     Page 2


     Skadden, Arps, Slate, Meagher & Flom LLP, (Robert E.
Lighthizer, John J. Mangan, Jeffrey D. Gerrish, Ellen J. Schneider,
Nathaniel B. Bolin) for United States Steel Corporation, Defendant-
Intervenor.


     TSOUCALAS, Senior Judge: Pending before the Court are three

motions.     On one side, Plaintiff, Sahaviriya Steel Industries

Public Company Limited (“SSI”) moves this Court, pursuant to USCIT

Rule 65(a), for a preliminary injunction to enjoin the United

States    Department    of   Commerce   (“Commerce”    or   “Dept.”)    from

continuing the changed circumstances review of SSI’s sales of

certain hot-rolled carbon steel flat products from Thailand.             See

Pl.’s Mot. for Prelim. Inj. & to Advance & Consol. Trial on the

Merits. SSI further moves, pursuant to USCIT R. 65(a)(2), to

advance and consolidate a trial on the merits with a hearing of its

application for injunctive relief.       See id.

     On the other side, Defendant and Defendant-Intervenor each

move for dismissal, pursuant to USCIT R. 12(b)(1) and 28 U.S.C. §

1581, for lack of subject matter jurisdiction and because the

action is not ripe for judicial review.               See Def.’s Mot. to

Dismiss; Mot. to Dismiss of Def.-Int.        On December 12, 2008, the

Court    heard   oral   argument   to   determine   whether    preliminary

injunctive relief or dismissal was appropriate.

     For the reasons set forth below, the Court finds it lacks

jurisdiction to hear the claims raised by Plaintiff, and grants

Defendant and Defendant-Intervenor’s motions to dismiss.                 The
Court No. 08-00353                                                   Page 3


Court, therefore, need not address Plaintiff’s stated grounds for

injunctive relief.

                                BACKGROUND

     On November 29, 2001, Commerce issued an antidumping duty

order    on   certain   hot-rolled   carbon   steel    flat   products   from

Thailand. See Antidumping Duty Order: Certain Hot-Rolled Carbon

Steel Flat Products From Thailand, 66 Fed. Reg. 59,562 (Nov. 29,

2001).    The order was based on separate findings by Commerce and

the U.S. International Trade Commission (“ITC” or “Commission”)

that certain hot-rolled steel from Thailand had been sold in the

United States at less than fair value resulting in material injury

to the domestic hot-rolled steel industry.            See id. at 59,563-64.

SSI was among the Thai producers of subject merchandise included in

the antidumping duty order.      See id. at 59,563.

     Over the following three years, Commerce conducted a series of

administrative reviews of the order in which it determined that SSI

had not sold hot-rolled steel at less than normal value.                  See

Certain Hot-Rolled Carbon Steel Flat Products From Thailand: Final

Results and Partial Rescission of Antidumping Duty Administrative

Review, 69 Fed. Reg. 19,388 (Apr. 13, 2004); Certain Hot-Rolled

Carbon Steel Flat Products from Thailand: Rescission of Antidumping

Duty Administrative Review, 69 Fed. Reg. 18,349 (Apr. 7, 2004)

(this second administrative review was rescinded when the parties

requesting the review withdrew their requests); Certain Hot-Rolled
Court No. 08-00353                                                                Page 4


Carbon    Steel      Flat   Products      from    Thailand:       Final    Results       of

Antidumping     Duty     Administrative         Review,   Partial        Revocation     of

Antidumping Duty Order and Partial Rescission of Antidumping Duty

Administrative Review (“Final Results”), 71 Fed. Reg. 28,659 (May

17, 2006).        In November 2004, during the course of the third

administrative review, SSI requested partial revocation of the

order    with   respect      to   its    sales    of    subject    merchandise.         See

Complaint ¶ 8; Mem. of Def.-Int. in Supp. of Mot. to Dismiss &

Opp’n to Pl.’s Mot. for Prelim. Inj. (“Def.-Int.’s Memorandum”),

Exhibit 2 (SSI’s Request for Administrative Review, Request for

Revocation      of   Antidumping        Duty    Order    in   Part,      and    Entry    of

Appearance) (“SSI Request”). In its revocation request, SSI agreed

“to immediate reinstatement of the order, so long as any Thai

exporter or producer is subject to it, should the Department

determine that SSI, subsequent to the requested revocation, sold

the subject merchandise at less than fair value.”                     SSI Request at

3.

     After      having      determined     that    SSI    had     sold    the    subject

merchandise at not less than normal value for a period of three

consecutive years, Commerce revoked the antidumping duty order for

SSI’s exports of hot-rolled steel. See Final Results, 71 Fed. Reg.

28,661; see also Issues and Decision Memorandum for the Final

Results    of     Antidumping      Duty        Administrative      Review,       Partial

Revocation of Antidumping Duty Order and Partial Rescission of
Court No. 08-00353                                                 Page 5


Antidumping Duty Administrative Review of Certain Hot-Rolled Carbon

Steel    Flat   Products   from     Thailand   (“Issues    and   Decision

Memorandum”), cmt. 1, p. 12.        Despite partial revocation of the

antidumping order with respect to SSI, the order itself remained in

effect as to other Thai producers and exporters. See Certain Hot-

Rolled Carbon Steel Flat Products from India, Indonesia, the

People’s   Republic   of   China,    Taiwan,   Thailand,   and   Ukraine:

Continuation of Antidumping Duty and Countervailing Duty Orders, 72

Fed. Reg. 73,316 (Dec. 27, 2007).

     On November 8, 2006, U.S. Steel submitted an allegation to

Commerce, claiming that SSI had resumed sales of hot-rolled steel

products at less than normal value subsequent to its removal from

the original antidumping order. See Initiation of Antidumping Duty

Changed Circumstances Review: Certain Hot-Rolled Carbon Steel Flat

Products from Thailand (“Notice of Initiation”), 73 Fed. Reg.

18,766 (Apr. 7, 2008).     Consistent with agency regulations,1 U.S.

Steel requested that Commerce initiate a changed circumstances

review to reinstate the order with regard to SSI’s exports of

subject merchandise to the United States.        See id.    Accordingly,


     1
       The Department’s regulations provide that if Commerce
finds that changed circumstances exist, it “will conduct a
changed circumstances review under § 351.216.” 19 C.F.R. §
351.222(g)(2). Thus, “an interested party may request a changed
circumstances review . . . of an order . . . . Within 45 days
after the date on which a request is filed, the Secretary will
determine whether to initiate a changed circumstances review.” 19
C.F.R. § 351.216(b).
Court No. 08-00353                                                 Page 6

Commerce conducted an analysis of the information it received from

U.S. Steel to determine the sufficiency of its allegations.         While

U.S. Steel’s initial request for the changed circumstances review

was submitted on Nov. 8, 2006, additional information required by

Commerce was gathered over the course of a seventeen month period.

For example, Commerce issued several supplemental questionnaires

between   December   2006    and   February   2008   seeking   additional

information regarding petitioner’s allegations. U.S. Steel filed

its last response with Commerce on March 5, 2008.

     Finally, on March 28, 2008, Commerce, relying on its authority

under section 751(b)(1) of the Tariff Act of 1930,2 codified at 19

U.S.C.    §   1675(b)(1),3     initiated      the    underlying   changed

circumstances review to determine whether SSI had sold hot-rolled


     2
       Further citations to the Tariff Act of 1930 are to the
relevant provision in Title 19 of the United States Code, 2000
edition.
     3
       The relevant portions of 19 U.S.C. § 1675(b) state:
     Reviews based on changed circumstances

     (1) In general
         Whenever the administering authority . . . receives
     information concerning, or a request from an
     interested party for a review of-

                (A) a final affirmative determination that
                resulted in an antidumping duty order under this
                subtitle . . . .

     which shows changed circumstances sufficient to warrant a
     review of such determination . . ., the administering
     authority . . . shall conduct a review of the
     determination[.]
Court No. 08-00353                                                         Page 7

steel at less than normal value, during the period July 1, 2006

through   June    30,   2007,   and    whether    it   should      therefore    be

reinstated in the original antidumping duty order.                 See Notice of

Initiation, 73 Fed. Reg. at 18,771. Following initiation, Commerce

issued several questionnaires to SSI in which it requested data on

the company’s U.S. sales, costs of production and other company

specific information for the period of review. See Def.-Int.’s

Memorandum, Exhibit 11 (Questionnaire Issued by the Dept. of

Commerce in Changed Circumstances Review of Certain Hot-Rolled

Carbon Steel Flat Products from Thailand (Apr. 11, 2008)); Exhibit

16 (The Department of Commerce’s First Supplemental Questionnaire

(July, 18, 2008)); Exhibit 17 (The Department of Commerce’s Second

Supplemental Questionnaire (Aug. 7, 2008)); The Department of

Commerce’s Supplemental Cost Information Questionnaire (Aug. 6,

2008);    The     Department      of   Commerce’s         Third     Supplemental

Questionnaire (Sept. 18, 2008).          SSI responded to these requests

for information, while simultaneously challenging the Department’s

authority to conduct a changed circumstances review for the purpose

of reinstating a previously revoked antidumping duty order.                    See

Complaint, Exhibit 3 (SSI Request to Reconsider and Terminate

Initiation   of    Changed   Circumstances       Review    (Aug.    25,   2008)).

      Plaintiff commenced this action on October 7, 2008, and seeks

injunctive relief to prevent the Department from continuing with

its   changed     circumstances     review.      Defendant    and     Defendant-
Court No. 08-00353                                                               Page 8

Intervenor oppose Plaintiff’s motion, and urge this Court to

dismiss the instant action for lack of subject matter jurisdiction

and because the claims contained therein are not yet ripe.

                           ARGUMENTS OF THE PARTIES

     I.     Plaintiff’s Arguments

     Plaintiff     challenges      the    Department’s         legal       authority    to

initiate    a    changed      circumstances    review         for    the    purpose     of

reinstating a previously revoked antidumping duty order because

“[s]ection 751(b) of the Act does not authorize the Department to

reinstate   an    order    with    respect    to    merchandise        covered     by    a

revocation.”      Mem. in Supp. of         Pl.’s Mot. to Advance & Consol.

Trial on the Merits & for Prelim. Inj. Relief (“Pl.’s Memorandum”)

at 12 (internal citation omitted). SSI argues that section 1675(b)

only grants authority to Commerce and the ITC to conduct a changed

circumstances review of “a final affirmative determination that

resulted in an antidumping duty order” provided there are changed

circumstances      sufficient      to    warrant     a    review.      19     U.S.C.     §

1675(b)(1);      see   also    Pl.’s    Memorandum       at    13.         According    to

Plaintiff, there are only two final affirmative determinations that

result in an antidumping duty order.               See Pl.’s Memorandum at 13.

A final dumping determination made by Commerce in a less-than-fair

value investigation, and a final injury determination made by the

Commission.      See id.      SSI looks to section 1675(d)(1) as “the only

other section of the statute that mentions [section 1675(b)] or
Court No. 08-00353                                                    Page 9

sheds any light on the meaning of a changed circumstances review”

and notes that “[t]here is no reference anywhere in the statute to

‘reinstatement’ of an antidumping duty order.”4             Id.    Since the

statute does not specifically address reinstatement, Plaintiff

claims, the only way SSI’s exports may be subject to antidumping

duties is if Commerce initiates a new investigation followed by a

dumping determination by the Department and an injury determination

by the ITC.    See id. at 18.

     Plaintiff relies on this Court’s decision in Asahi Chemical

Indus. Co. Ltd., v. United States, 13 CIT 987, 727 F. Supp. 625

(1989), as further evidence that section 1675(b) precludes Commerce

from reinstating an order against merchandise that was previously

revoked.      See   id.   at   14.   The   Court   in   Asahi   examined   the

Department’s reinstatement regulation in effect at the time, 19

C.F.R. § 353.54(e) (1988), and whether its requirement that a party

agree to immediate suspension of liquidation and reinstatement of

the antidumping duty order was enforceable.             Commerce’s previous

regulation read in pertinent part:

     Before the Secretary may tentatively revoke a Finding or
     an Order . . . the parties who are subject to the
     revocation . . . must agree in writing to an immediate


     4
         Section 1675(d)(1) states in part that:

     The administering authority may revoke, in whole or in part,
     . . . an antidumping duty order . . . after review under
     subsection (a) [administrative review] or (b) [changed
     circumstances review] of this section.
Court No. 08-00353                                                   Page 10

     suspension of liquidation and reinstatement of the
     Finding or Order . . . if circumstances develop which
     indicate that the merchandise thereafter imported into
     the United States is being sold at less than fair value.

19 C.F.R. § 353.54(e) (1988).       SSI interprets the Court’s holding

in Asahi as standing for the proposition that revocation of the

antidumping order renders the order moot with respect to the

merchandise    covered   by   the   previous    revocation.    See   Pl.’s

Memorandum    at   14.   Therefore,    “once    the   Department   makes   a

revocation determination, ‘the antidumping duty order ceases to be

operative and may not be reinstated.’”         Id. (quoting Asahi, 13 CIT

at 990, 727 F. Supp. 625, 628).           Plaintiff contends that the

Department’s current regulation, 19 C.F.R. § 351.222(b)(2)(i)(B),

is “substantively no different from the regulation at issue in

Asahi,” id. at 15, and contains the same defects identified by the

Court in that case.      See id. at 16. Namely, that the regulation

abrogates the statutory requirement of affirmative dumping and

injury determinations necessary to impose duties.          See id. at 15.

Commerce’s current reinstatement regulation provides:

     In determining whether to revoke an antidumping duty
     order in part, the Secretary will consider:

     Whether, for any exporter or producer that the Secretary
     previously has determined to have sold the subject
     merchandise at less than normal value, the exporter or
     producer agrees in writing to its immediate reinstatement
     in the order, as long as any exporter or producer is
     subject to the order, if the Secretary concludes that the
     exporter or producer, subsequent to the revocation, sold
     the subject merchandise at less than normal value.
Court No. 08-00353                                            Page 11

19 C.F.R. § 351.222(b)(2)(i)(B).   Therefore, Plaintiff concludes,

the Court’s holding in Asahi is equally applicable here, and

eliminates the Department’s legal authority to reinstate the order

over SSI.   See Pl.’s Memorandum at 18.

     Plaintiff submits that this Court has jurisdiction under 28

U.S.C. § 1581(i), specifically subparagraphs (i)(2) and (i)(4),5 to

hear the claim that “the Department’s initiation of a changed

circumstances review of SSI for the purpose of reinstating an

already revoked order is illegal and ultra vires.” Complaint ¶ 21.

SSI maintains that section 1581(i) jurisdiction exists in cases,

where as here, the other potential mechanism for judicial review

under 28 U.S.C. § 1581(c) is “manifestly inadequate.”         Pl.’s


     5
       The relevant portions of 28 U.S.C. § 1581(i) read as
follows:

     In addition to the jurisdiction conferred upon the Court of
     International Trade by subsections (a)-(h) 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-

     (2) tariffs, duties, fees, or other taxes on the importation
     of merchandise for reasons other than the raising of revenue;

     (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.

     This subsection shall not confer jurisdiction over an
     antidumping or countervailing duty determination which is
     reviewable . . . by the Court of International Trade under [19
     U.S.C. § 1516a].
Court No. 08-00353                                                    Page 12

Memorandum at 8.     According to SSI, the “manifestly inadequate”

standard is met when an agency’s actions are ultra vires.             See id.

Plaintiff references its earlier argument that section 1675(b)(1)

only    provides   for   a   changed   circumstances   review    of    final

affirmative dumping or injury determinations, and not for the

purpose of reinstating a previously revoked antidumping duty order.

Thus, any attempt by the Department to reinstate such an order in

a changed circumstances review is contrary to law, and beyond the

scope of its statutory authority.       See id.

       SSI maintains that the Court’s broad injunctive powers include

the ability to “halt an ultra vires proceeding,” id. at 7, and

offers as support for its position, a line of cases in which the

Court exercised its residual jurisdiction to prevent Commerce from

continuing with an allegedly unlawful proceeding.        See Asociacion

Colombiana de Exportadores de Flores v. United States, 13 CIT 584,

717 F. Supp. 847 (“Ascoflores”) (1989); Techsnabexport, Ltd. v.

United States, 16 CIT 420, 795 F. Supp. 428 (1992); Jia Farn Mfg.

Co., Ltd. v. United States, 17 CIT 187, 817 F. Supp. 969 (1993);

Hysla S.A. v. United States, 22 CIT 44 (“Hysla II”) (1998); Dofasco

Inc. v. United States, 28 CIT 263, 326 F. Supp. 2d 1340 (2004).

Plaintiff     attempts to apply a similar rationale as the cases

cited, and argues that section 1581(i) jurisdiction is proper

because it is challenging Commerce’s authority to conduct the

changed circumstances review in the first instance.             Hence, the
Court No. 08-00353                                                            Page 13

relief SSI seeks cannot be obtained through a judicial challenge

instituted    after       the    review   has    been   completed.      See   Pl.’s

Memorandum    at    8.      By    “forcing      Plaintiff   to   wait   until   the

Department completes the unlawful proceeding renders the relief

sought moot.”       Id.

     Additionally, SSI complains that the remedy afforded under

section 1581(c) is “manifestly inadequate” because Plaintiff’s

forced    participation in the changed circumstances review places a

substantial burden on the company.              See id. at 9.    Since the review

is one for possible reinstatement of a partially revoked order,

participation in it involves the same level of data collection

associated with an administrative review.                This, according to SSI,

is “extremely burdensome,” and renders section 1581(c) “manifestly

inadequate.”       Id.

     The remainder of Plaintiff’s arguments focus on the factors a

court must consider in determining the propriety of injunctive

relief.      Because these claims are unrelated to the threshold

determination of jurisdiction, the Court need not address them at

this time.

     II.    Defendants’ Arguments

     Commerce and U.S. Steel, at times, present similar arguments

in their motions to dismiss and supporting memoranda, therefore the

Court     will     address        the     parties’      arguments    collectively

(“Defendants”), with appropriate attribution as to the source of
Court No. 08-00353                                                                 Page 14

each claim.

      Defendants counter that Plaintiff may not bring its challenge

under section 1581(i) because it may seek judicial review pursuant

to another jurisdictional provision, specifically, 28 U.S.C. §

1581(c), after Commerce issues its final determination in the

changed circumstances review.            See Def.’s Mem. in Supp. of Mot. to

Dismiss     &    Opp’n    to    Pl.’s    Mot.      for    Prelim.    Inj.        (“Def.’s

Memorandum”) at 12; Def.-Int.’s Memorandum at 7.                            Defendants

reference       the   exclusionary      language     in   section    1581(i)       which

precludes jurisdiction under that subsection when the action being

challenged       is   reviewable      under     section     1516a.         See    Def.’s

Memorandum at 12; Def.-Int.’s Memorandum at 8.                    Because a changed

circumstances review is specifically identified as reviewable under

section     1516a(a)(2)(B)(iii),             Defendants     argue,        the    express

exclusion of section 1581(i) applies. See Def.’s Memorandum at 12-

13;   Def.-Int.’s        Memorandum     at    9.    Moreover,       section       1581(c)

provides that the Court “shall have exclusive jurisdiction of any

civil action commenced under [19 U.S.C. § 1516a].”                        28 U.S.C. §

1581(c). Therefore, another subsection of 1581 is available to SSI

which, according to Defendants, renders Plaintiff’s jurisdictional

argument    unsound.          See   Def.’s    Memorandum     at     13;    Def.-Int.’s

Memorandum at 9.

      Furthermore, Defendants assert, the remedy provided for under

section    1581(c)       is   not   “manifestly      inadequate.”          See    Def.’s
Court No. 08-00353                                                         Page 15

Memorandum at 10; Def.-Int.’s Memorandum at 10. Noting that SSI is

contesting      the   Department’s      authority   to   initiate   a     changed

circumstances review for the purpose of reinstating an antidumping

duty order, Defendants argue that “SSI will have a full opportunity

to seek relief from this Court pursuant to § 1581(c) to challenge

Commerce’s initiation of the review.” Def.-Int.’s Memorandum at 9.

Thus, there is nothing in the present case that would render review

under    that   section      “manifestly   inadequate.”      See    id.    at   8.

Moreover, Defendants argue, “mere allegations of financial harm, or

assertions that an agency failed to follow a statute, do not make

the remedy established by Congress manifestly inadequate.”                 Id. at

10 (quoting Int’l Custom Prods., Inc. v. United States, 467 F.3d

1324, 1327 (Fed. Cir. 2006).

     Defendants       next    contest    Plaintiff’s     characterization       of

Commerce’s actions as ultra vires, and maintain that ultra vires

conduct is but one factor a court will consider in assessing

manifest inadequacy of the normal judicial review process. See id.

at 11.     In order for the Court to find that a party can forgo

relief under the normal process, the party must first establish

that the agency conduct was “patently ultra vires,” or ultra vires

without question.       Id. (quoting Gov’t of the People’s Republic of

China v. United States, 31 CIT __, 483 F. Supp. 2d 1274, 1282

(2007) (citation omitted). Defendants explain that, similar to the

Department’s revocation authority, Commerce’s authority to conduct
Court No. 08-00353                                                          Page 16

a   changed   circumstances    review     to    assess    reinstatement      of   a

producer in an antidumping order, is statutorily based (i.e., 19

U.S.C. § 1675(b)(1) and § 1675(d)).            See Def.’s Memorandum at 18;

Def.-Int.’s    Memorandum     at   12,    22.      Defendants      submit    that

Commerce’s    authority   under    this    section       is   extremely     broad,

empowering the agency “to conduct a changed circumstances review

whenever there are ‘changed circumstances sufficient to warrant a

review’ of the antidumping order.”             Def.-Int.’s Memorandum at 13

(quoting Mittal Canada, Inc. v. United States, 30 CIT 1565, 1572

n.7, 461 F. Supp. 2d 1325, 1332 (2006)).                      As a result, the

Department’s initiation of the review is proper and the “patently

ultra vires” standard is not met.          See id. at 11-13.         Defendants

also refute Plaintiff’s contention that its forced participation in

the changed circumstances review imposes a substantial burden on

SSI, thus rendering jurisdiction under section 1581(c) “manifestly

inadequate.”     See id. at 15; Def.’s            Memorandum at 10.            The

“inconvenience and expense” associated with the review, according

to Defendants, are an inherent part of the “administrative and

judicial review process,” and “cannot therefore constitute manifest

inadequacy.”    Def.-Int.’s Memorandum at 15 (quoting Gov’t of the

PRC, 31 CIT __, 483 F. Supp. 2d 1274, 1283) (citation omitted); see

also Def.’s Memorandum at 10.

      Defendants offer an interpretation of this Court’s holding in

Asahi that does not invalidate Commerce’s authority to order
Court No. 08-00353                                                         Page 17

reinstatement.        See    Def.’s    Memorandum     at     20-22;   Def.-Int.’s

Memorandum at 24-25.        Contrary to Plaintiff’s argument, Defendants

maintain that the Court’s determination in Asahi was confined to

the regulation in place at the time.            See Def.’s Memorandum at 20.

Pointing out that Commerce’s current reinstatement regulation has

since been substantively amended, Defendants claim that the new

regulation cures each of the defects identified by the Asahi Court.

See Def.-Int.’s Memorandum at 26.

      Moreover, Defendants add, this action is not ripe for judicial

consideration because Commerce has not yet issued the final results

of its changed circumstances review, and SSI has failed to show the

requisite undue hardship.        See Def.’s Memorandum at 7.           Defendants

rely on the factors a court looks to in determining whether an

appeal from an administrative determination is ripe for review,

such as the fitness of the issue for judicial decision, and the

hardship to the parties of withholding court consideration.                    See

id.   As to the first factor, Defendants argue that Commerce’s

decision to initiate a changed circumstances review does not

represent the Department’s final position on the matter, and is

more analogous to a “threshold determination” than final agency

action.    Id. (quoting U.S. Ass’n of Imps. of Textiles & Apparel v.

U.S. Dept. of Commerce, 413 F3d 1344, 1349 (Fed. Cir. 2005).                   For

example,   Commerce    has    not     issued   its   final    results,   and   may
Court No. 08-00353                                                             Page 18

determine that SSI has not resumed dumping.6                        Referencing the

relevant statutory provisions,7 Defendants claim that permitting

SSI to “appeal nonfinal [agency] decisions would eviscerate the

finality requirements memorialized in the statute and legislative

history.”        Id. at 8.      Therefore, SSI’s claims should be dismissed

as unripe.        See id. at 7.

      With regard to the second factor, Defendants maintain that

there      is    no     undue    hardship      to     SSI   of   withholding   court

consideration because SSI faces no exceptional burden from its

participation in the underlying changed circumstances review.                      See

id.   at    9.    No    legal     or   practical      effect     emanates   from   its

involvement, except the burden of responding to the Department’s

inquiries.        See id.      Defendants contend that the “expense and risk

associated       with    the    review   are    not    functions    of   whether   the

investigation is ultra vires, but merely an inherent feature of the

retrospective system designed by Congress.”                    Id. at 9-10 (citing D

& L Supply Co. v. United States, 17 CIT 1419, 1422, 841 F. Supp.



      6
       During the pendency of this action, Commerce issued its
preliminary results with regard to the underlying review. See
Certain Hot-Rolled Carbon Steel Flat Products from Thailand:
Preliminary Results of Changed Circumstances Review and Intent To
Reinstate Sahaviriya Steel Industries Public Company Limited in
the Antidumping Duty Order, 73 Fed. Reg. 79,809 (Dec. 30, 2008).
      7
       19 U.S.C. § 1516a authorizes judicial review of final
agency determinations in antidumping proceedings. 28 U.S.C. §
2637(d) requires the exhaustion of administrative remedies “where
appropriate” in certain civil actions against the United States.
Court No. 08-00353                                               Page 19

1312, 1315 (1993).

     Finally, Commerce insists that the cases offered by Plaintiff,

in which the Court exercised jurisdiction pursuant to section

1581(i), are distinguishable from the instant matter.        See id. at

13-15.    More specifically, the jurisdictional issues attendant in

the cases cited by Plaintiff were not “matters relating to the

merits of the action.”      Id. at 14.     By contrast, Plaintiff’s

jurisdictional claim is inextricably intertwined with the merits of

the present action, and the former cannot be decided without

considering and deciding the latter.     See id. at 15-16.    Since the

Court’s jurisdiction here turns in part on the substantive issue of

whether the Department’s initiation of the changed circumstances

review was proper or beyond the agency’s authority, Commerce

maintains that the Court is precluded from hearing SSI’s claims.

See id.

                              ANALYSIS

     Plaintiff invokes the Court’s residual jurisdiction under 28

U.S.C. § 1581(i).    By its terms, this section of the statute is an

expansive grant of exclusive jurisdiction over certain causes of

action against the United States.         See 19 U.S.C. § 1581(i).

Because subject matter jurisdiction is treated as a threshold

determination, it must be examined separately and antecedently.

See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94

(1998). Absent jurisdiction, a “court cannot proceed at all in any
Court No. 08-00353                                                           Page 20

cause.”   Id.    Indeed, the rules of this Court dictate that if “the

court   determines      at   any   time   that       it    lacks     subject-matter

jurisdiction,     the   court   must   dismiss       the    action.”      USCIT   R.

12(h)(3).

     It is well established that a plaintiff may not pursue an

action under section 1581(i) if any other 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, 824 F.2d 961, 963 (Fed. Cir. 1987);

see also Int’l Custom Prods., 467 F.3d 1324; Nippon Steel Corp. v.

United States, 219 F.3d 1348 (Fed. Cir. 2000); Shakeproof Indus.

Prods. Div. of Ill. Tool Works Inc. v. United States, 104 F.3d 1309

(Fed. Cir. 1997); Norcal/Crosetti Foods, Inc. v. United States, 963

F.2d 356 (Fed. Cir. 1992). Here, SSI does not contend that section

1581(c) is unavailable, but rather that the remedy provided under

this provision is “manifestly inadequate.”                 Pl.’s Memorandum at 8.

Where another remedy is or could have been available, the party

asserting section 1581(i) jurisdiction has the burden of showing

the manifest inadequacy of that remedy.              See Miller & Co., 824 F.2d

at 964.     SSI raises two main points in arguing that relief under

section   1581(c),      after   waiting   for    Commerce       to    complete    its

inquiry, would be “manifestly inadequate.”                   First, Commerce has

acted ultra vires by initiating the changed circumstances review to

assess reinstatement of a partially revoked antidumping order.
Court No. 08-00353                                              Page 21

Second, SSI’s forced participation in the underlying review imposes

a substantial burden on the manufacturer.

     While neither Congress nor the courts have provided a precise

definition of the term “manifestly inadequate,” given the clear

Congressional preference expressed in section 1581(i) for review in

accordance with section 1516a,8 the Court must be careful not to

interfere in ongoing proceedings absent a clear indication of the

inadequacy of a section 1581(c) review.      See Hysla, S.A. de C.V. v.

United States, 21    CIT   222,   228, 960   F. Supp. 320, 325 (“Hysla

I”)(1997).

     I.   Section 1581(c) Is Not “Manifestly Inadequate”

          A.   Ultra Vires

     SSI’s principal argument for the invocation of the Court’s

residual jurisdiction, is that reinstatement of a partially revoked

antidumping order constitutes ultra vires agency conduct because

the provision authorizing the Department to conduct a changed



     8
       The House Report adopting amendments to 28 U.S.C. § 1581
contains the following remarks: “[I]t is the intent of the
Committee that the Court of International Trade not permit
subsection (i), and in particular paragraph (4), to be utilized
to circumvent the exclusive method of judicial review of those
antidumping and countervailing duty determinations listed in
section [1516a] . . . . The Committee intends that any
determination specified in section [1516a], or any preliminary
administrative action which, in the course of proceeding, will
be, directly or by implication, incorporated in or superceded by
any such determination, is reviewable exclusively as provided in
[section 1516a].” H.R. Rep. No. 96-1235, at 48 (1980), as
reprinted in 1980 U.S.C.C.A.N. 3729, 3759-60.
Court No. 08-00353                                                 Page 22

circumstances review, 19 U.S.C. § 1675(b)(1), applies exclusively

to affirmative final dumping determinations made by Commerce or

injury determinations made by the Commission.        Indeed, Plaintiff’s

ultra vires argument forms the basis for all of its other claims in

this matter.    The alleged manifest inadequacy of section 1581(c);

the Court’s broad injunctive powers to halt an ultra vires review;

the substantial burden imposed on Plaintiff as a result of its

forced participation in an ultra vires proceeding; and even its

counter   argument    to   Defendants’   ripeness    challenge   are   all

predicated on the assertion that Commerce acted outside the scope

of its authority.    For this reason, the Court agrees with SSI that

the gravamen of its case involves the single legal issue of whether

the Department’s initiation of a changed circumstances review for

the purpose of reinstating a partially revoked antidumping order

constituted    ultra vires government action.       See Pl.’s Memorandum

at 10.

     Because Plaintiff’s claim regarding the inadequacy of a remedy

under section 1581(c) is inter-reliant with and contingent upon its

claim of ultra vires agency conduct, a determination of what

constitutes ultra vires activity becomes the focal point of the

Court’s review.      In discussing this factor it is impossible to

separate completely matters relating to the merits of this action
Court No. 08-00353                                               Page 23

from the discussion of jurisdiction.9       Therefore, in order for the

Court to adequately consider the jurisdictional issue it must

review at least in part this substantive question.       A claim that an

action is ultra vires is different from a claim that the agency’s

regulation incorrectly implements the statute that the agency is

charged with administering.        In other words, an agency action is

not ultra vires simply because it is “arguably a mistake of fact or

law.”       State of Alaska v. Babbitt, 67 F.3d 864, 867 (9th Cir. 1995)

(citation omitted).        An ultra vires act is one performed without

any authority to act whereas an error in the exercise of that power

is insufficient to support an ultra vires claim.          See Pennhurst

State School & Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984)

(citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682

(1949)).       The scope of an agency’s authority turns on whether the

agency was empowered to engage in the challenged course of conduct

in the first place.         For example, even if the Department acted

erroneously, was it within the scope of its delegated power to do


        9
       The Court takes this opportunity to recognize and reject,
Commerce’s argument that section 1581(i) jurisdiction is barred
where the jurisdictional issue is intertwined with the merits of
the action. This position is based on a flawed interpretation of
the Federal Circuit’s holding in Nippon Steel. The Court, in
Nippon Steel, held that in the “unusual situation” where the
jurisdictional issue and the merits are “inextricably
intertwined” a court may bypass the jurisdictional question and
proceed directly to the merits. See Nippon Steel, 219 F.3d at
1353. This Court, however, is not exercising its residual
jurisdiction, but is only considering the threshold determination
of whether jurisdiction exists at all.
Court No. 08-00353                                                Page 24

so.   See United States v. Yakima Tribal Court, 806 F.2d 853, 860

(9th Cir. 1986).   In the case at bar, Commerce bases its authority

for   reinstatement   on   sections   1675(b)   (changed   circumstances

review) and (d) (revocation of antidumping/countervailing duty

order).    Although    neither   section   specifically    provides    for

reinstatement, Commerce is endowed with both an explicit and

implicit grant of authority to adopt regulations administering the

antidumping statute.

      It is well settled that when Congress leaves a gap within a

statute administered by an agency, Congress impliedly entrusts the

agency with the authority to fill such gap, but where, as here,

Congress has expressly authorized Commerce to engage in rulemaking,

the Court must infer that Congress has delegated authority to the

agency to address statutory ambiguities. See United States v. Mead

Corp., 533 U.S. 218, 229 (2001) (citing Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)).

Congress’ express delegation of authority to Commerce is codified

under 19 U.S.C. § 1624, which provides:

      In addition to the specific powers conferred by this
      chapter the Secretary of the Treasury is authorized to
      make such rules and regulations as may be necessary to
      carry out the provisions of this chapter.

Currently, one of the mechanisms by which Commerce has chosen to

administer sections 1675(b) and (d) is 19 C.F.R. § 351.222.           This

regulation describes in detail the procedures to be followed and
Court No. 08-00353                                                        Page 25

the conditions imposed on a producer seeking to avail itself of

partial revocation.        As such, it is a proper exercise of the

Department’s explicit authority to resolve the ambiguity left by

Congress in the relevant sections of the antidumping statute.

Plaintiff can point to no language in the statute or prior case law

which expressly denies Commerce the authority to reinstate a

partially revoked antidumping order.        Absent any such legislative

or judicial constraints the agency’s actions in this matter cannot

be considered ultra vires.

      An ultra vires claim cannot be construed to allege that

Commerce promulgated its reinstatement regulation based on an

erroneous interpretation of the statute, but rather that Commerce

acted outside the scope of its statutory authority, and was without

any legal basis to make that interpretation at all.               Plaintiff’s

effort at re-casting its ultra vires argument, merely amounts to a

claim that Commerce committed a “mistake of law” in promulgating

the   reinstatement   regulation,     not   that   the       Department    acted

“completely outside [its] governmental authority.”                  Alaska v.

Babbitt, 67 F.3d at 867.         If, instead, SSI had proffered an

argument that Commerce’s decision in this case was an errant

application of the antidumping laws, the agency’s interpretation of

the   statute,   whether    adopted   pursuant     to    a    rule-making    or
Court No. 08-00353                                                 Page 26

adjudicative proceeding,10 would be accorded deference         consistent

with    the   Supreme   Court’s   decision   in   Chevron.11   Plaintiff’s

reluctance to proceed in this manner is in no small measure due to

the finality requirements of section 1516a and 5 U.S.C. § 704

(which provides that legal challenges to “preliminary, procedural,

or intermediate” agency decisions are subject to review upon final

agency action).12       Regardless, the Court cannot alter its legal


       10
       The regulation on reinstatement of a partially revoked
order, 19 C.F.R. § 351.222, was promulgated through notice and
comment rule-making. Thus, Commerce’s policy is a “formal
expression of an agency’s interpretation of a statute that it
administers” and is “normally entitled to Chevron deference.”
Motorola, Inc. v. United States, 436 F.3d 1357, 1365 (Fed. Cir.
2006).
       11
       As directed by the Supreme Court, a reviewing court must
first consider “whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear,
that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent of
Congress.” Chevron, 467 U.S. at 842-43. If, however, “the
statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency’s answer
is based on a permissible construction of the statute.” Id. at
843.
       12
       Although its wording is less than clear, Plaintiff’s
complaint is construed to bring this action under the
Administrative Procedure Act (“APA”), i.e., 5 U.S.C. § 702. While
not expressly stating that Plaintiff is filing suit under the
APA, the complaint cites to 28 U.S.C. § 2631(i) in its allegation
of standing, which provides for application of the APA. See
Complaint ¶ 5. Construing Plaintiff’s complaint to bring an
action under the APA, however, does not alter the jurisdictional
analysis. This Court’s residual jurisdiction case law, including
those decisions pertaining to the “manifestly inadequate”
standard, is mirrored in section 704's requirement that “[a]gency
action made reviewable by statute and final agency action for
                                                   (continued...)
Court No. 08-00353                                                  Page 27

analysis to accommodate Plaintiff’s argumentum ab inconvenienti.

     In support of its position, SSI points to this Court’s holding

in Asahi, and argues that because the regulation examined by the

Court in Asahi is substantively no different from the Department’s

current    regulatory   provision   for   reinstatement,   the    existing

regulation should be rejected as well.       However, the source of the

dispute in Asahi was the proper interpretation of 19 C.F.R. §

353.54(e) as it applied to the facts of that case, not whether the

agency lacked the appropriate statutory basis for implementing the

regulation.    Read in its proper context, the holding in Asahi is

inapposite for purposes of the instant matter, and the Court

declines    Plaintiff’s   invitation   to   review   Commerce’s   current

regulatory scheme under the aegis of an ultra vires rationale,

other than to say that SSI has failed to show a patent violation of

agency authority.13


     12
      (...continued)
which there is no other adequate remedy in a court are subject to
judicial review.” 5 U.S.C. § 704.
     13
       The Court does not find the decisions Plaintiff cites,
relating to the economic consequences of participation in
administrative reviews, to be of direct relevance. See Hylsa II,
22 CIT at 47 (exercising residual jurisdiction because of the
“grave economic harm” not adequately addressed under other
subsections of 19 U.S.C. § 1581); Ascoflores, 13 CIT at 587, 717
F. Supp. 847, 850 (exercising jurisdiction under section 1581(i)
because of “the difficulties of participation under the facts of
this case”). On the other hand, cases challenging the scope of
agency authority support the Court’s rationale. See
Techsnabexport 16 CIT 420, 795 F. Supp. 428 (residual
                                                   (continued...)
Court No. 08-00353                                                            Page 28


            B.     Substantial Burden

     The    second   prong    of     Plaintiff’s       “manifestly     inadequate”

argument suffers a similar fate.                 SSI claims that the burden

imposed on a participant in a changed circumstances review is

substantial because it would essentially require the same level of

data collection as an administrative review.                 But having already

determined    that   Commerce       acted   in   conformity     with     a   clearly

expressed    delegation   of    authority        by    Congress,   and    that   the

agency’s actions are not ultra vires, the obligations associated

with a lawfully commenced proceeding cannot be considered grounds

for jurisdiction under section 1581(i).               Regardless, without more,

harm attributable to participation in a potentially unauthorized

antidumping      proceeding    is    insufficient       to   render    the    remedy

afforded by section 1581(c) “manifestly inadequate.”                  See Hysla I,

21 CIT at 227, 960 F. Supp. 320, 324.                 Contrary to SSI’s claims,

the great weight of authority holds that “mere allegations of

financial harm, or assertions that an agency failed to follow a

statute, do not make the remedy established by Congress manifestly

inadequate.” Int’l Custom Prods., 467 F.3d at 1327 (quoting Miller


     13
      (...continued)
jurisdiction found where the existence of the antidumping duty
order itself was called into question); see also Jia Farn, 17 CIT
at 191, 817 F. Supp. 969, 973 (while exercising its residual
jurisdiction, the Court found Commerce’s initiation of a changed
circumstances review for the purpose of reinstatement of an
antidumping duty order, to be within the scope of agency
authority under section 1675.
Court No. 08-00353                                                           Page 29

& Co., 824 F.2d 961, 964); see also F.T.C. v. Standard Oil, 449

U.S. 232, 244 (1980) (“the expense and annoyance of litigation is

part of the social burden of living under government”); Gov’t of

the   PRC,   31    CIT   __,   483    F.    Supp.   2d   1274,   1283    (“the   cost

associated with defending oneself in a trade remedy proceeding is

not the type of burden with which this Court concerns itself”);

Abitibi-Consolidated Inc. v. United States, 30 CIT 714, 724, 437 F.

Supp. 2d 1352, 1362 (2006) (holding that the inconvenience and

expense of the administrative and judicial review process cannot

constitute manifest inadequacy).

      SSI has failed to demonstrate that adequate redress cannot be

obtained in an action brought under 28 U.S.C. § 1581(c) challenging

the final results of Commerce’s changed circumstances review.                     For

instance, should Commerce decide to reinstate the partially revoked

antidumping       duty   order   as    to    SSI,    Plaintiff    will    have   the

opportunity to bring an action challenging those results.                   In such

an action, SSI is entitled to contest “any factual findings or

legal conclusions upon which the determination is based,” 19 U.S.C.

1516a(a)(2)(A), including the statutory and regulatory bases for

the Department’s initiation of the changed circumstances review.

See Tianjin Magnesium Int’l. Co., Ltd. v. United States, 31 CIT __,

533 F. Supp. 2d 1327, 1338-39 (2008).                    Thus, had SSI waited to

bring this action upon completion of the review, it could have

contested the legality of Commerce’s actions in a subsequent
Court No. 08-00353                                                         Page 30

challenge under section 1581(c).

      II.   Ripeness

      SSI cannot invoke jurisdiction under section 1581(i) under the

circumstances       presented      here,    because   the   remedy   afforded   by

section 1581(c) is not “manifestly inadequate.” Plaintiffs action,

however, suffers from an additional jurisdictional defect.                  SSI’s

failure to convince this Court of ultra vires agency conduct

renders ineffective its argument that the issues presented in this

case are ripe for judicial review.

      The ripeness doctrine serves “to prevent the courts, through

avoidance of premature adjudication, from entangling themselves in

abstract disagreements over administrative policies, and also to

protect     the     agencies       from    judicial   interference      until   an

administrative decision has been formalized and its effects felt in

a   concrete      way   by   the   challenging   parties.”     Abbott   Labs.   v.

Gardner, 387 U.S. 136, 148-49 (1967).             In determining the ripeness

of an issue, the Court must consider two factors: (1) “the fitness

of the issue for judicial decision;” and (2) “the hardship to the

parties of withholding court consideration.”                   See Tokyo Kikai

Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1362 (Fed. Cir.

2008) (quoting Abbott Labs., 387 U.S. 136, 149).

      With respect to the first step, it is clear that non-final

agency action is not ripe for review.             See id. (citing U.S. Ass’n

of Imps. of Textiles & Apparel v. U.S. Dep’t of Commerce, 413 F.3d
Court No. 08-00353                                                Page 31

1344, 1349-50 (Fed. Cir. 2005) (“Textiles III”).         SSI, however,

does not challenge the general ripeness principles set forth in the

surplus of cases regarding the need to establish final agency

action.    Instead, Plaintiff argues that none of these cases are

relevant because they do not involve a challenge to ultra vires

agency    conduct,   and   that   courts   routinely   reject   ripeness

challenges to otherwise non-final agency actions when a party has

challenged those actions as ultra vires.14 But SSI’s only reference

to the hardship requirement is to allege the imposition of a severe

hardship by virtue of the company’s forced participation in an

ultra vires proceeding.     Insofar as this Court has already found

that Commerce acted within the scope of its legislatively delegated

authority, Plaintiff’s iteration of its ultra vires claim cannot


     14
        Inexplicably, SSI offers the holding from U.S. Ass’n of
Imps. of Textiles & Apparel v. United States, 29 CIT 323, 366 F.
Supp. 2d 1280 (2005) (“Textiles II”), as support for this
position. See Pl.’s Mem. in Opp’n to Def.’s & Def.-Int.’s Mot. to
Dismiss at 19 (“Pl.’s Response”). In a companion case, U.S. Ass’n
of Imps. of Textiles & Apparel v. United States, 28 CIT 2115, 350
F. Supp. 2d 1342 (2004) (“Textiles I”), this Court granted
plaintiff’s request for preliminary injunction while reserving
judgment on a ripeness challenge from Commerce. In Textiles II,
the Court exercised jurisdiction over plaintiff’s claims and
rejected Commerce’s ripeness bid. In hearing the government’s
appeal of the Textiles I decision, the Federal Circuit reversed
the lower court’s judgment because the decision being challenged
was “merely a threshold determination,” Textiles III, 413 F.3d at
1350, thus finding “the government’s argument as to ripeness
sufficient.” Id. at n.3. The appeals court’s decision disposed of
both Textiles I and Textiles II. Therefore, Plaintiff’s
characterization of the Textiles III holding, as one not decided
on ripeness grounds, is wholly inaccurate. See Pl.’s Response at
20 n.7.
Court No. 08-00353                                               Page 32

succeed.   Therefore, the decision by Commerce that SSI seeks to

challenge in connection with the yet to be completed changed

circumstances review does not constitute final agency action, and

dismissal of this action will not render any legally cognizable

hardship upon Plaintiff.

     In sum, the changed circumstances review is ongoing and, upon

its conclusion, SSI will have the opportunity to challenge any

aspect of the review.   Plaintiff has failed to convince this Court

that jurisdiction under section 1581(c) will be unavailable, or

that any remedy afforded in such action is “manifestly inadequate.”

Jurisdiction   under    section   1581(i)   therefore   cannot    lie.

Accordingly, the exclusive means of judicial review for Plaintiff’s

claims falls under 28 U.S.C. § 1581(c).

     Notwithstanding Plaintiff’s inability to establish subject

matter jurisdiction under section 1581(i), this matter would be

subject to dismissal on the grounds of lack of ripeness.
Court No. 08-00353                                         Page 33


                            CONCLUSION

     For the reasons set forth above, the motions to dismiss filed

by Defendant and Defendant-Intervenor are granted. Plaintiff’s

motion for a preliminary injunction is denied. Judgement to be

entered accordingly.




                                          /s/ Nicholas Tsoucalas
                                            NICHOLAS TSOUCALAS
                                               SENIOR JUDGE




Decided:   February 24, 2009
           New York, New York
                             ERRATA


Sahaviriya Steel Indus. Public Co. Ltd., Court No. 08-00353, Slip
Op. 09-15, dated Feb. 24, 2009.

On page 24, Line 18: “19 U.S.C. § 1624” should read “5 U.S.C. §
301”

On page 24, Indented paragraph beginning on Line 19 should read:

     “The head of an Executive department or military department
     may prescribe regulations for the government of his
     department, the conduct of its employees, [and] the
     distribution and performance of its business . . . .”



Dated: February 25, 2009
