Belgium v. United States

United States Court of Appeals for the Federal Circuit
2008-1213, -1214

UGINE AND ALZ BELGIUM, ARCELOR STAINLESS USA, LLC,
and ARCELOR TRADING USA, LLC,

Plaintiffs-Appellees,

v.

UNITED STATES,

Defendant-Appellant,

and

ALLEGHENY LUDLUM and NORTH AMERICAN STAINLESS,

Defendant-Appellants,

and

AK STEEL CORP., BUTLER ARMCO INDEPENDENT UNION,
UNITED AUTO WORKERS LOCAL 3303, UNITED STEELWORKERS OF AMERICA,
AFL-CIO/CLC, and ZANESVILLE ARMCO INDEPENDENT ORGANIZATION,

Defendants.

Thomas B Wilner, Shearman & Sterling LLP, of Washington, DC, argued for
plaintiffs-appellees. With him on the brief were Ryan A.T. Trapani and Robert S.
LaRussa.

Stephen C. Tosini, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for defendant-appellant
United States. With him on the brief were Gregory G. Katsas, Assistant Attorney
General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director.
Of counsel on the brief was Nithya Nagarajan, Attorney, Office of Chief Counsel for
Import Administration, United States Department of Commerce, of Washington, DC.

R. Alan Luberda, Kelley Drye & Warren LLP, of Washington, DC, for defendants-
appellants, Allegheny Ludlum, et al. With him were David A. Hartquist and Adam H.
Gordon.

Appealed from: United States Court of International Trade

Judge Gregory W. Carman
 United States Court of Appeals for the Federal Circuit

2008-1213, -1214

UGINE AND ALZ BELGIUM, ARCELOR STAINLESS USA, LLC,
and ARCELOR TRADING USA, LLC,

Plaintiffs-Appellees,

v.

UNITED STATES,

Defendant-Appellant,

and

ALLEGHENY LUDLUM and NORTH AMERICAN STAINLESS,

Defendant-Appellants,

and

AK STEEL CORP., BUTLER ARMCO INDEPENDENT UNION,
UNITED AUTO WORKERS LOCAL 3303, UNITED STEELWORKERS OF AMERICA,
AFL-CIO/CLC, and ZANESVILLE ARMCO INDEPENDENT ORGANIZATION,

Defendants.

Appeals from the United States Court of International Trade in case no. 05-00444,
Judge Gregory W. Carman.

___________________________

DECIDED: January 7, 2009
___________________________

Before BRYSON, DYK, and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge DYK. Dissenting opinion filed by Circuit
Judge PROST.

DYK, Circuit Judge.
 The Department of Commerce (“Commerce”) issued liquidation instructions

requiring that certain steel imported by Plaintiff-Appellees Ugine and ALZ Belgium,

Arcelor Stainless USA, LLC and Arcelor Trading USA, LLC (together “Arcelor”), be

treated as Belgian instead of German in origin and subject to antidumping and

countervailing duties. The Court of International Trade held that the liquidation

instructions issued by Commerce were contrary to law. After Commerce adopted new

instructions, the Court of International Trade affirmed, upholding the revised liquidation

instructions. We hold that the Court of International Trade had jurisdiction under 28

U.S.C. § 1581(i), and properly found the first liquidation instructions improper.

Accordingly, we affirm.

BACKGROUND

I

This case involves both antidumping and countervailing duty determinations, but

the processes are similar for both types of determinations. Responsibility for such

determinations is shared between Commerce and the International Trade Commission

(“ITC”). 19 U.S.C. §§ 1671, 1673. In antidumping duty determinations, the statute

charges Commerce with determining whether dumping has occurred and, if so, the

amount of antidumping duties that should be imposed. See id. §§ 1673-1677n. The

ITC is charged with determining whether there has been material injury or a threat of

material injury to a domestic industry. Id. § 1673d(b).

2008-1213, -1214 2
 Antidumping duty determinations usually start when petitions are filed with

Commerce and the ITC “by or on behalf of” a domestic industry. 1 19 U.S.C.

§§ 1673a(c)(4), 1673a(b)(2). If the petition submission satisfies the statutory

requirements, an antidumping investigation is then commenced. See id. § 1673a(2).

The ITC, after receiving information from the domestic producers, makes a preliminary

injury determination whether there is “reasonable indication” that “an industry in the

United States . . . is materially injured, or . . . is threatened with material injury . . . .” Id.

§ 1673b(a)(1). After requesting and receiving information from foreign exporters and

producers, Commerce makes a preliminary determination as to the existence and

extent of dumping and the amount of duties that should be imposed. See id.

§§ 1673b(b), (d)(1). Commerce’s preliminary determination is published in the Federal

Register. 19 U.S.C. § 1673b(f); 19 C.F.R. § 351.205(c).

Entries of imported goods before the publication date of Commerce’s preliminary

determination are generally not subject to antidumping duties, but entries after that date

are subject to such duties. 2 After the preliminary determination, importers are required

to deposit security—generally referred to as a cash deposit—sufficient to cover the

estimated antidumping duties. 3 19 U.S.C. § 1673b(d)(1)(B). This is an estimate of the

final duties, paid “pending liquidation, which is the final computation or assessment of

1
Commerce can also initiate the process itself under § 1673a(a), in which
case Commerce officially notifies the ITC “that an investigation has been initiated.”
19 U.S.C. § 1673b(a)(2)(B).
2
The exception is when there are “critical circumstances,” in which case
sales up to 90 days prior to the preliminary determination can be subjected to duties
and the suspension of liquidation. 19 U.S.C. § 1673b(e)(2).
3
In most cases this takes the form of a bond, but can be an actual cash
deposit where the importer does not qualify for a bond.

2008-1213, -1214 3
duties for a particular entry.” Mukand Int’l, Ltd. v. United States, 502 F.3d 1366, 1367

(Fed. Cir. 2007) (citing 19 C.F.R. §§ 141.101, 141.103, 159.1).

Entries that have been liquidated cannot be subjected to additional duties. In

order to preserve the opportunity to impose duties on goods entered after the date of

the preliminary determination, Commerce suspends liquidation as to these entries in the

preliminary determination. See 19 U.S.C. § 1673b(d)(2); see also 19 C.F.R. § 159.58.

After further proceedings, if Commerce makes a final determination that dumping

has occurred and if the International Trade Commission makes a final determination of

material injury, Commerce issues a final antidumping order that determines which

goods are subject to antidumping duties and their duty rate. Duferco Steel, Inc., 296

F.3d 1087, 1089-90 (Fed. Cir. 2002) (citing 19 U.S.C. §§ 1671(a)(1), 1671d(b)(1),

1671d(c)(2), 1673(1), 1673d(b)(1), 1673d(c)(2)). However, this final determination

addresses the existence of dumping only during a specified period of time before the

preliminary determination (a period used to determine the existence of dumping but not

a period as to which duties are ultimately imposed). In other words, the final order does

not in fact determine the existence of dumping during any period in which duties could

be imposed or fix the duty rate for any goods. Rather, the final order assumes that

dumping continued after the preliminary order and such dumping will continue after the

date of the final order. The final order (like the preliminary order) establishes a cash

deposit rate, applicable to future entries starting from the date of the order.

The administering agencies periodically review whether dumping has in fact

occurred, the amount of the duty, and the question of material injury. 19 U.S.C.

§§ 1675 et seq. If no administrative review is requested, then Commerce issues

2008-1213, -1214 4
liquidation instructions to Customs to assess duties at the cash deposit rate. 19 C.F.R.

§ 351.212(c)(1). If review is requested, Commerce conducts an administrative review

and retrospectively determines whether dumping has occurred and the final duty rates

for the previously unliquidated entries subject to that review. 19 U.S.C. § 1675(a). In

the course of the review, Commerce also publishes the new cash deposit rates for

future entries, equal to the administrative review’s final duty rates for earlier entries. 19

C.F.R. §§ 351.211(b)(2), 351.212(a). Additionally, upon request and as frequently as

once a year, the ITC will conduct a similar review of its finding of material injury. 19

U.S.C. §§ 1675(a), (b).

The first review period, if review is requested, begins on the date of the

preliminary determination and ends with the month before the anniversary month of the

final antidumping determination order. See 19 U.S.C. § 1675(a)(1); 2 Kaye & Dunn, Int’l

Trade Practice § 28:2, 28-4 (2007). Every subsequent review, if requested, begins with

the anniversary month of the final antidumping determination order and ends twelve

months later. 2 Harvey Kaye & Christopher Dunn, International Trade Practice § 28:2

(2007). Finally, “sunset” reviews—to determine whether the antidumping order should

be rescinded—are conducted by Commerce and the International Trade Commission at

least once within the first five years of issuance of the final order, and then once every

five years thereafter. 19 U.S.C. § 1675(c); FAG Italia S.p.A. v. United States, 291 F.3d

806, 810 (Fed. Cir. 2002).

We have held that publication of the final results of an administrative review

automatically lifts the suspension of liquidation for goods covered by that period. Int’l

Trading Co. v. United States, 281 F.3d 1268, 1271 (Fed. Cir. 2002). After publication of

2008-1213, -1214 5
the final results, Commerce issues liquidation instructions to Customs with respect to

these goods, and Customs liquidates them at the rate determined by the final

administrative review order. 19 U.S.C. § 1675(a)(3)(B); see 19 C.F.R. § 351.212(b);

see also Consol. Bearings Co. v. United States, 348 F.3d 997, 1002 (Fed. Cir. 2003).

Customs performs a ministerial function in executing these liquidation instructions.

Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994).

If judicial review of a final administrative review order is requested, the Court of

International Trade may enjoin the liquidation of entries to prevent liquidation until

judicial review is completed. 19 U.S.C. § 1516a(c)(2); Ugine & ALZ Belgium v. United

States, 452 F.3d 1289, 1292 (Fed. Cir. 2006) (“Arcelor III”).

The entries at issue in this case were made between the preliminary order and

the end of the period for the first administrative review. The question is whether they

were subject to duties under the first administrative review order.

II

Arcelor imports stainless steel plate in coils (“SSPC”). In 1998 Commerce

initiated antidumping and countervailing duty investigations of SSPC from Belgium. On

September 4, 1998, Commerce published its preliminary countervailing duty

determination. Preliminary Affirmative Countervailing Duty Determination and

Alignment of Final Countervailing Duty Determination with Final Antidumping Duty

Determination: Stainless Steel Plate in Coils from Belgium, 63 Fed. Reg. 47,239 (Sept.

4, 1998). On November 4, 1998, Commerce published its preliminary antidumping duty

determination. Notice of Preliminary Determination of Sales at Less than Fair Value:

Stainless Steel Plate in Coils grom Belgium, 63 Fed. Reg. 59,532 (Nov. 4, 1998). In

2008-1213, -1214 6
1999, Commerce issued the final countervailing duty order and the final antidumping

duty order on Belgian SSPC. Notice of Amended Final Determinations: Stainless Steel

Plate in Coils from Belgium and South Africa; and Notice of Countervailing Duty Orders:

Stainless Steel Plate in Coils from Belgium, Italy and South Africa, 64 Fed. Reg. 25,288

(May 11, 1999); Antidumping Duty Orders; Certain Stainless Steel Plate in Coils from

Belgium, Canada, Italy, the Republic of Korea, South Africa, and Taiwan, 64 Fed. Reg.

27,756 (May 21, 1999).

Between September 4, 1998 (the date of the preliminary countervailing duty

determination) and November 4, 1998 (the date of the preliminary antidumping duty

determination) to April 30, 2000, the period covered by the first administrative reviews,

Arcelor imported SSPC and made cash deposits pursuant to the preliminary and final

antidumping and countervailing duty orders for Belgian SSPC. Ugine & ALZ Belgium,

N.V. v. United States, 391 F. Supp. 2d 1284, 1287 (Ct. Int’l Trade 2005) (“Arcelor I”).

During this period, Arcelor made what it views as a mistake in its invoice entries by

designating some German SSPC as being of Belgian origin. These entries were not

liquidated because Arcelor appealed the results of Commerce’s first countervailing duty

administrative review (on other grounds), and the court issued a preliminary injunction

enjoining liquidation of these entries pending resolution of the appeal. See Ugine & ALZ

Belgium, N.V. v. United States, 517 F. Supp. 2d 1333, 1336 (Ct. Int’l Trade 2007)

(“Arcelor IV”). As a result, Commerce suspended liquidation for Arcelor’s entries that

were subject to both the countervailing duty order and the antidumping duty order. Id.

Ultimately, the Court of International Trade found fault with Commerce’s methodology

2008-1213, -1214 7
and remanded but upheld Commerce’s determination, made after remand, with respect

to the countervailing duty. Id.

On April 11, 2005, pursuant to the final court decision from the first administrative

review, Commerce published its “Amended Final Results” for the first period of review,

assessing the countervailing duties with respect to certain Belgian steel. Stainless Steel

Plate in Coils from Belgium: Notice of Amended Final Results of Countervailing Duty

Administrative Review, 70 Fed. Reg. 18,374. During the course of the administrative

determination and court review, neither party nor Commerce addressed the question of

whether steel hot rolled in Germany and not further cold rolled in Belgium was Belgian

in origin.

While the judicial review of the first administrative review was pending, the

second administrative review for May 1, 2000 through April 31, 2001, was completed

(determining that certain Belgian steel had been dumped) and its entries were liquidated

or deemed liquidated on April 13, 2003. 4 Arcelor IV, 517 F. Supp. 2d at 1336 n.4.

There was no administrative review for the third period, and the entries were liquidated

or deemed liquidated on April 23, 2003. Id.

Sometime before the fourth administrative review, in approximately April 2004,

Arcelor recognized for the first time that the company had mis-designated certain

products as Belgian in origin that should have been designated as German in origin with

respect to entries subject to the first period of administrative review. See Arcelor I, 391

4
An entry may be deemed liquidated under 19 U.S.C. § 1504(d) as follows:
“Any entry . . . not liquidated by the Customs Service within 6 months after receiving
such [liquidation] notice shall be treated as having been liquidated at the rate of duty,
value, quantity, and amount of duty asserted by the importer of record or (in the case of
a drawback entry or claim) at the drawback amount asserted by the drawback claimant.”

2008-1213, -1214 8
F. Supp. 2d at 1287. As a result of its mis-designations, Arcelor had mistakenly made

cash deposits of antidumping and countervailing duties as if its merchandise were

Belgian. Id. In Arcelor’s view, the merchandise was German in origin because the steel

was hot rolled in Germany and not further cold rolled in Belgium before export and

under Commerce precedent such steel should be treated as German in origin. Arcelor

IV, 517 F. Supp. 2d at 1337 & n.5. Upon realization of its mistake, Arcelor both filed

“timely protests with Customs pursuant to 19 U.S.C. § 1514,” Arcelor I, 391 F. Supp. 2d

at 1287, and “filed letters with Customs in order to correct the country-of-origin

designation and seek a refund of the deposits.” Arcelor IV, 517 F. Supp. 2d at 1338.

As noted, these entries had not yet been liquidated.

Meanwhile, an administrative review of the antidumping duty order was

requested and initiated for the fourth period of review (i.e., May 1, 2002 through April

30, 2003). Id. at 1336-38. The Commerce review questionnaire asked for specific

details about SSPC imported from Belgium. As part of that review, Arcelor did not

include in its questionnaire answers the entries which it had determined to be German.

In response, Commerce requested and received a supplemental questionnaire from

Arcelor which addressed these entries. Then, during the review, Arcelor argued that

under Commerce’s “substantial transformation” doctrine the SSPC was of German

origin, not of Belgian origin, because it was hot rolled in Germany and then subjected

only to minor finishing in Belgium (it was pickled, annealed, packaged, and shipped in

Belgium). Id. at 1337. Arcelor argued that the final administrative review order should

reflect the fact that SSPC from Germany was not subject to the antidumping order.

2008-1213, -1214 9
Commerce accepted this argument over the protests of the domestic industry, finding

the location of substantial transformation, i.e. hot rolling, “dispositive.” Issues and

Decision Memorandum for the Final Results of the Fourth Administrative Review of the

Antidumping Duty Order on Stainless Steel Plate in Coils (SSPC) from Belgium, 69 Fed.

Reg. 74,495, 74,497 (Dec. 14, 2004), available at

http://ia.ita.doc.gov/frn/summary/belgium/E4-3641-1.pdf at 15. Accordingly, Commerce

held that the steel hot rolled in Germany and not further cold rolled in Belgium was not

subject to the antidumping order. Id. (“[T]he statute requires the Department to limit its

review to merchandise whose country-of-origin is Belgium.”). No party appealed.

On July 1, 2005, Commerce issued final antidumping liquidation instructions from

the fourth administrative review. “Liquidation Instructions for Stainless Steel Plate in

Coils from Belgium Produced by Ugine & ALZ, N.V. Belgium,” Message No. 5,182,203

(July 1, 2005). With regard to SSPC from Germany, the liquidation instructions stated

that “[t]he Department has determined that imports of SSPC hot rolled in Germany and

not further cold rolled in Belgium are not subject to the antidumping duty order on SSPC

from Belgium. Entries of this merchandise made on or after 05/01/02 should be

liquidated without regard to antidumping duties.” Id. at ¶ 2.

Neither the fourth administrative review nor the July 1, 2005, liquidation

instructions resolved the treatment of the remaining unliquidated entries from the first

period of review. Commerce addressed this question on July 8, 2005, by issuing

liquidation instructions. In contrast to the July 1st liquidation instructions covering the

period of the fourth administrative review, Commerce’s July 8, 2005, instructions

determined that entries covered by the first administrative review were subject to duties.

2008-1213, -1214 10
Commerce’s instructions stated that “[e]ntries of SSPC hot rolled in Germany and not

further cold rolled in Belgium [i.e., German SSPC] should be liquidated at the

countervailing duty rate specified in these [Customs] instructions [covering Belgian

SSPC].” “Liquidation For Stainless Steel Plate in Coils from Belgium,” Message No.

5,189,204 at ¶ 7 (July 8, 2005). In other words, the SSPC was to be treated as being

Belgian in origin. On July 18, 2005, Commerce issued corresponding antidumping

liquidation instructions, covering the remaining entries from the first administrative

review, similarly providing for liquidation at the rate determined for Belgian SSPC.

“Liquidation Instructions for Stainless Steel Plate in Coils from Belgium,” Message No.

5,199,201 at ¶ 5 (July 18, 2005).

On July 22, 2005, Arcelor initiated these proceedings by filing suit in the Court of

International Trade challenging Commerce’s liquidation instructions and seeking to

enjoin their enforcement. The Court of International Trade denied the parties’ consent

motion for a preliminary injunction, based on a finding that Arcelor had not shown a

likelihood of success on the merits and that sufficient irreparable harm would result from

the failure to issue an injunction. See Arcelor I, 391 F. Supp. 2d at 1294. This court

reversed and ordered that a preliminary injunction be entered upon remand, finding that

the issue of likelihood of success was not “clear-cut” and that there was a strong

showing of irreparable harm because the denial of a preliminary injunction could result

in denying Arcelor the opportunity for a decision on the merits of its claim. Arcelor III,

452 F.3d at 1295-97.

Upon remand, the Court of International Trade held that Commerce’s instructions

were contrary to law. Arcelor could not be expected to raise the issue before the

2008-1213, -1214 11
liquidation instructions were issued because “[p]laintiffs can not be expected to raise a

challenge on an issue before it ripens or is revealed.” Arcelor IV, 517 F. Supp. 2d at

1343. The court reasoned that Commerce may not impose duties on goods that are

outside the scope of an antidumping or countervailing duty order. Id. at 1345; (citing 19

U.S.C. §§ 1673e(a)(2), 1671e(a)(2); see also 19 C.F.R. § 351.211(b)(1); Duferco Steel,

296 F.3d at 1098 (“Congress made no provision for bringing other merchandise within

the scope of antidumping and countervailing duty orders that was otherwise outside the

language of those orders.”)). The court concluded that Commerce in the fourth

administrative review had determined that steel hot rolled in Germany and not further

cold rolled in Belgium was not Belgian in origin. The court found that Commerce had

committed an ultra vires act when it issued liquidation instructions for the German SSPC

from the first period of review as if it were subject to the antidumping and countervailing

duty orders on Belgian SSPC. Arcelor IV, 517 F. Supp. 2d at 1345-46. The court

remanded to Commerce to issue new instructions. Id. at 1349. On October 1, 2007,

under protest, Commerce complied with the remand and issued revised instructions.

On December 18, 2007, the Court of International Trade issued a final judgment

affirming the remand results. Ugine & ALZ Belgium v. United States, No. 05-00444, slip

op. at 1 (Ct. Int’l Trade Dec. 18, 2007). Both the government and domestic industry

defendants appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

DISCUSSION

On this appeal the government does not challenge the Court of International

Trade’s holding that steel hot rolled in Germany and not further cold rolled in Belgium is

not Belgian in origin. The government contends only that the suit is barred because

2008-1213, -1214 12
Arcelor failed to exhaust administrative remedies. Since the jurisdictional and merits

issues as to exhaustion are intertwined, we discuss them together. This Court reviews

the Court of International Trade’s subject matter jurisdiction ruling and its legal decisions

without deference. Consol. Bearings Co., 348 F.3d at 1001.

Unfortunately, under the statutes and regulations, there is no single judicial

review method for challenging the imposition of antidumping duties. If the challenge is

to the final order of an administrative review, the determination can be reviewed by the

Court of International Trade under 28 U.S.C. § 1581(c) (which confers jurisdiction for

civil suits commenced under 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a).

Consol. Bearings Co., 348 F.3d at 1002. On the other hand, if the final order is unclear,

19 C.F.R. § 351.225 makes available a scope review under 28 U.S.C. § 1581(c). See

Mukand Int’l, Ltd., 502 F.3d at 1367 (“Commerce also provides a procedure, referred to

as a ‘scope ruling,’ to allow an interested party to determine whether a particular import

is covered by an antidumping duty order.”). If the party challenges the liquidation

instructions issued by Commerce to implement a final order, review is available under

28 U.S.C. § 1581(i)(2), (4); Consol. Bearings Co., 348 F.3d at 1002-03. If the liquidation

order is clear, but is being improperly applied by Customs, then Customs’s actions can

be challenged under 28 U.S.C. § 1581(a). Xerox Corp. v. United States, 289 F.3d 792,

795 (Fed. Cir. 2002).

However, § 1581(i) jurisdiction “may not be invoked when jurisdiction under

another subsection of § 1581 is or could have been available, unless the remedy

provided under that subsection would be manifestly inadequate.” Int’l Customs Prods.,

Inc. v. United States, 467 F.3d 1324, 1327 (Fed. Cir. 2006) (quoting Norcal/Crosetti

2008-1213, -1214 13
Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed. Cir. 1992) (quoting Miller & Co. v.

United States, 824 F.2d 961, 963 (Fed. Cir. 1987))). Thus, jurisdiction over the

challenge to the liquidation instructions pursuant to subsection (i) is not available if there

is another administrative remedy, which would lead to review under another subsection

of 28 U.S.C. § 1581. Moreover, a plaintiff must exhaust administrative remedies as a

matter of substantive law. 28 U.S.C. § 2637 (“[T]he Court of International Trade shall,

where appropriate, require the exhaustion of administrative remedies.”); Myers v.

Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938) (finding that the district court

had no jurisdiction to hear a complaint where the plaintiffs had failed to exhaust their

administrative remedies); Consol. Bearings Co., 348 F.3d at 1003 (“In the Court of

International Trade, a plaintiff must also show that it exhausted its administrative

remedies . . . .”); Sandvik Steel Co. v. United States, 164 F.3d 596, 599-602 (Fed. Cir.

1998); but see Norsk Hydro Canada, Inc. v. United States, 472 F.3d 1347, 1354-56

(Fed. Cir. 2006) (holding 28 U.S.C. § 1581(a) and (c) are each a “separate and distinct

avenue for relief” and exhaustion does not require resort to (a) as a condition to being

able to challenge under (c)).

Commerce does not contend that Arcelor should have raised the issue presented

here in the fourth review, nor could it. We have recently sustained Commerce’s

interpretation that “only entries received during the one-year period under review may

be considered.” Norsk Hydro Canada, 472 F.3d at 1361. Instead, Commerce argues

that Arcelor is in fact challenging the determination made in the first administrative

2008-1213, -1214 14
review order and failed to exhaust administrative remedies to that order, a failure that is

assertedly fatal to its claim. 5

The premise of the government’s exhaustion argument is that the first

administrative review order determined that the entries in question were subject to

antidumping and countervailing duties as Belgian SSPC. There was in fact no such

determination. The orders in question determined that certain SSPC “from Belgium”

was both being dumped and subject to a foreign countervailable subsidy and

established the final antidumping and countervailing duties for SSPC “from Belgium.”

Stainless Steel Plate in Coils from Belgium: Notice of Amended Final Results of

Countervailing Duty Administrative Review, 70 Fed. Reg. 18,374 (Apr. 11, 2005);

Stainless Steel Plate in Coils from Belgium: Final Results of Antidumping Duty

Administrative Review, 66 Fed. Reg. 56,272 (Nov. 7, 2001). It did not define what

criteria should be applied to determine whether particular steel was Belgian in origin nor

did it state which entries were subject to antidumping or countervailing duties. Arcelor

had no legitimate objection to the order. Thus, there was nothing to correct in the first

administrative review order, and no administrative remedy to exhaust. As we said in

Consolidated Bearings:

[A]n action challenging Commerce’s liquidation instructions is not a
challenge to the final results, but a challenge to the “administration and
enforcement” of those final results. [It] challenges the manner in which
Commerce administered the final results. Section 1581(i)(4) grants
jurisdiction to such an action.

348 F.3d at 1002.

5
Commerce also appears to contend that the issue should have been
raised in the second and third administrative reviews, but under Norsk Hydro, 472 F.3d
at 1361, entries during the first period of review could not be considered in these later
reviews.

2008-1213, -1214 15
 Commerce argues that liquidation of the remaining entries from the first

administrative review with a correction to the country-of-origin will create “absurd

results,” because the duties were calculated in the first administrative order assuming

that the entries were Belgian. Arcelor’s responses to Commerce’s first administrative

review questionnaire, which asked for specific details about SSPC imported from

Belgium, included the unliquidated entries at issue here. Commerce relied upon the

questionnaire responses in its dumping determination and duty calculation. But, the fact

that the duties may have been incorrectly calculated during the first administrative

review is no basis for rewriting the terms of the order, which applied only to SSPC “from

Belgium”. We have made clear that Commerce’s order must be enforced based on

what the order actually says, not on what Commerce wished the order had said. See

Duferco Steel, 296 F.3d at 1097-98.

Commerce’s real complaint appears to be that Arcelor should not belatedly be

able to correct the country-of-origin designation on its entries. However, the

government does not suggest that there were any statutory or regulatory procedures for

correcting Arcelor’s error in the entries that Arcelor failed to exhaust. Moreover, neither

the statute nor the regulations impose a time limit on the correction of errors such as

those made here by Arcelor. Indeed, the existence of a time limit to challenge errors by

2008-1213, -1214 16
Customs in 19 U.S.C. § 1514 6 suggests that there is no time limit on the correction of

errors—clerical or otherwise—before liquidation, although presumably, such a time limit

could be imposed by regulation.

In short, there was nothing wrong with the first administrative review order.

Arcelor’s objection was to the application of that order reflected in the liquidation

instructions. Arcelor brought the challenge at the first opportunity. Under the

circumstances there was no failure to exhaust available administrative remedies. See

Consol. Bearings Co., 348 F.3d at 1004 (holding that the exhaustion doctrine does not

apply where there is no procedure to exhaust). Thus, the trial court properly exercised

jurisdiction, and Arcelor’s claim on the merits is also not barred by the exhaustion

doctrine.

The remaining question is whether Commerce’s liquidation instructions were

erroneous when it treated the entries in question as Belgian. As we held in Shinyei

Corp. of America v. United States, “[u]nder [19 U.S.C. §] 1675(a)(2)(C), the results of an

administrative review determination ‘shall be the basis for the assessment of

countervailing or antidumping duties on entries of merchandise covered by the

determination and for deposits of estimated duties.’” 355 F.3d 1297, 1306 (Fed. Cir.

2004) (quoting 19 U.S.C. § 1675 (a)(2)(C)). Commerce, under the antidumping statute,

has discretion in defining the criteria for country-of-origin determinations. See 19 U.S.C.

6
Any “clerical error, mistake of fact, or other inadvertence” involved in a
number of determinations, including “the classification and rate and amount of duties
chargeable” shall become final and conclusive unless a protest is filed. 19 U.S.C.
§ 1514(a). In most cases, such protests “shall be filed with the Customs Service within
180 days after but not before” the date of liquidation. Id. § 1514(c)(3). If the protest is
sustained, “any duties . . . found to have been assessed or collected in excess shall be
remitted or refunded.” Xerox Corp., 289 F.3d at 795 (quoting 19 U.S.C. § 1515(a)).

2008-1213, -1214 17
§§ 66, 1677j(b); 19 C.F.R. § 134.1(b). Nonetheless, Commerce is obligated to follow

prior precedent absent some legitimate reason for departing from it. Consol. Bearings

Co., 348 F.3d at 1007. Here, Commerce’s prior precedent was clear. Steel that was

hot rolled in Germany and not further cold rolled in Belgium was German in origin, not

Belgian, because the processes performed in Belgium, pickling and annealing, did not

constitute a substantial transformation. In the Court of International Trade, Commerce

offered no reason for departing from this precedent with respect to the entries in

question, other than its argument—now rejected—that Arcelor failed to exhaust

administrative remedies. Indeed, as noted earlier, Commerce in this appeal does not

even argue that steel hot rolled in Germany and not further cold rolled in Belgium is

Belgian in origin.

Commerce now speculates that the entries in question may have been correct in

the first instance because the steel covered by the entries was in fact cold rolled in

Belgium. In issuing liquidation instructions Commerce was, of course, free to question

the corrected designation to show a German origin for the steel. 7 But in the proceeding

in the Court of International Trade, Commerce never suggested that the German origin

designation was incorrect if the court applied its traditional substantial transformation

test, requiring “a degree of processing or manufacturing resulting in a new and different

article.” Issues and Decision Memorandum for the Final Results of the Fourth

Administrative Review of the Antidumping Duty Order on Stainless Steel Plate in Coils

(SSPC) from Belgium, 69 Fed. Reg. 74495, 74497 (Dec. 14, 2004), available at

7
Section 304(a) of the Tariff Act of 1930 (19 U.S.C. § 1304(a)) contains
provisions regarding false designation of origin.

2008-1213, -1214 18
http://ia.ita.doc.gov/frn/summary/belgium/E4-3641-1.pdf at 7; see also Bestfoods v.

United States, 165 F.3d 1371, 1373 (Fed. Cir. 1999) (noting substantial transformation

is where “as a result of manufacturing or processing steps . . . [the] product loses its

identity and is transformed into a new product having a new name, character and use.”

(internal quotation marks omitted)). It is too late now for Commerce to argue that the

liquidation instructions might have been sustained on some other ground requiring a

factual determination not made or suggested below. The only basis for the liquidation

instructions was that the time had passed to make the challenge. Under these

circumstances, the Court of International Trade was correct in concluding that the July

8, 2005, and July 18, 2005, liquidation instructions were contrary to law.

AFFIRMED

COSTS

No costs.

2008-1213, -1214 19
 United States Court of Appeals for the Federal Circuit
2008-1213, -1214

UGINE AND ALZ BELGIUM, ARCELOR STAINLESS USA, LLC,
and ARCELOR TRADING USA, LLC,

Plaintiffs-Appellees,

v.

UNITED STATES,

Defendant-Appellant,

and

ALLEGHENY LUDLUM and NORTH AMERICAN STAINLESS,

Defendant-Appellants,

and

AK STEEL CORP., BUTLER ARMCO INDEPENDENT UNION,
UNITED AUTO WORKERS LOCAL 3303, UNITED STEELWORKERS OF AMERICA,
AFL-CIO/CLC, and ZANESVILLE ARMCO INDEPENDENT ORGANIZATION,

Defendants.

Appeals from the United States Court of International Trade in case no. 05-00444,
Judge Gregory W. Carman.

PROST, Circuit Judge dissenting.

It is my view that jurisdiction is unavailable under 28 U.S.C. § 1581(i) because

“jurisdiction under another subsection of § 1581 is or could have been available.” See

Int’l Customs Prods., Inc. v. United States, 467 F.3d 1324, 1327 (Fed. Cir. 2006)

(emphasis added); see also Majority Op. at 13-14. Additionally, I believe that Arcelor

failed to exhaust its administrative remedies. See 28 U.S.C. § 2637. Accordingly, I

respectfully dissent.
 The majority states that “Arcelor had no legitimate objection” to the final results of

the first administrative review because “[t]here was in fact no . . . determination” that the

entries in the first review period were Belgian. Majority Op. at 15. I disagree. During

an administrative review, Commerce must determine the “normal value,” “export price,”

and “dumping margin” for “each entry of the subject merchandise.” See 19 U.S.C.

§ 1675(a)(2)(A) (emphasis added); see also Majority Op. at 16 (noting that Commerce

relied upon Arcelor’s designation of the entries as Belgian “in its dumping determination

and duty calculation”). Thus, Commerce must, as it did in this case, identify the country

of origin for each entry from the review period to determine if it is “subject merchandise”

that should be included in the calculations. Because Arcelor designated the stainless

steel plate in coils (“SSPC”) as Belgian during the first administrative review (and never

raised any argument to the contrary), Commerce had no reason to expressly address

the country of origin of the entries in the final results. However, that Arcelor could have

challenged the country of origin of those entries is demonstrated by what actually

happened during the fourth administrative review, where Arcelor successfully argued

that some entries from that period were German and thus “outside the scope of th[e]

review.” J.A. 164; see also Majority Op. at 9-10. Because Arcelor contested the issue

of origin, the final results of the fourth review expressly made a country of origin

determination. See Majority Op. at 10.

If Arcelor had challenged the country of origin in the first administrative review,

Commerce would have considered it at that time, as it did in the fourth administrative

review. Assuming Commerce would have reached the same conclusion it reached in

the fourth administrative review, the final results and liquidation instructions for the first

2008-1213, -1214 2
review period would have excluded the German SSPC. If Commerce had come to the

opposite conclusion or refused to address the argument, Arcelor could have appealed

the final results to the Court of International Trade at that time under 28 U.S.C.

§ 1581(c). Thus, because Arcelor could have obtained the relief it now seeks if it had

acted during the first administrative review, the Court of International Trade does not, in

my view, have jurisdiction under § 1581(i).

2008-1213, -1214 3