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 defendantsappellants, 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. 
2008-1213, -1214 2 

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). 
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. § 15146

 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 
2008-1213, -1214 19 

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. 
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
2008-1213, -1214 3

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).