## 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 AR MCO INDEPENDENT UNION, UNITED AUTO WORKERS LOCAL 3303, UN ITED STEELWORKERS OF AMERICA, AFL-CIO/CLC, and ZANESVILLE ARMC O 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 Just ice, 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 Depar tment 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 ARMC O 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 opi nion filed by Circuit Judge PROST. DYK, Circuit Judge

.2008-1213, -1214 2 The Department of Commerce (“Commerc e”) issued liquidation instructions requiring that certain steel imported by Plaintiff-Appellees Ugine and ALZ Belgium, Arcelor Stainless USA, LLC and Arcelor Tr ading USA, LLC (together “Arcelor”), be treated as Belgian instead of German in origin and subject to antidumping and countervailing duties. The Court of Inte rnational Trade held t hat the liquidation instructions issued by Commerce were contra ry 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 in structions 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 Commerc e and the International Trade Commission (“ITC”). 19 U.S.C. §§ 1671, 1673. In ant idumping duty determinat ions, the statute charges Commerce with determining whether dumping has occurred and, if so, the amount of antidumping duties t hat 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 petiti on submission satisfies the statutory requirements, an antidumping invest igation 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 s hould 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 bef ore the publication date of Commerce’s preliminary determination are generally not subject to anti dumping duties, but entries after that date are subject to such duties. 2 After the preliminary determi nation, 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 liquidat ion, which is the final co mputation or assessment of

1 Commerce can also initiate the pr ocess itself under § 1673a(a), in which case Commerce officially notifies the ITC “t hat an investigation has been initiated.” 19 U.S.C. § 1673b(a)(2)(B). 2 The exception is when there are “cri tical circumstances,” in which case sales up to 90 days prior to the preliminar y determination can be subjected to duties and the suspension of liquidati on. 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 3duties for a particular entry.” Muk and 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 liqui dated cannot be subjected to additional duties. In order to preserve the opportunity to impos e 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 ma kes 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 t hat 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 duri ng 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 im posed). In other words, the final order does not in fact determine the existence of dum ping 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 (lik e the preliminary orde r) establishes a cash deposit rate, applicable to future entries st arting 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 materi al injury. 19 U.S.C. §§ 1675 et seq. If no administrative revi ew is requested, then Commerce issues

2008-1213, -1214 4liquidation 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 dumpi ng 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 revie w’s final duty rates for earlier entries. 19 C.F.R. §§ 351.211(b)(2), 351.212(a). Addi tionally, 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 m onth before the annivers ary 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 t he final antidumping determination order and ends twelve months later. 2 Harvey Kaye & Chri stopher Dunn, International Trade Practice § 28:2 (2007). Finally, “sunset” reviews—to dete rmine whether the anti dumping order should be rescinded—are conducted by Commerce and t he International Trade Commission at least once within the first five years of i ssuance of the final or der, 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 publicati on of the final results of an administrative review automatically lifts the suspens ion of liquidation for goods cove red by that per iod. Int’l Trading Co. v. United States , 281 F.3d 1268, 1271 (Fed. Cir. 2002) . After publication of

2008-1213, -1214 5the final results, Commerce issues liquidati on 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 requ ested, the Court of International Trade may enjoin the liquidati on 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 we re made between the preliminary order and the end of the period for the fi rst administrative review. The question is whether they were subject to duties under the first administrative review order.
II Arcelor imports stainless steel plat e in coils (“SSPC”). In 1998 Commerce initiated antidumping and counter vailing duty investigations of SSPC from Belgium. On September 4, 1998, Commerce published its preliminary countervailing duty determination. Preliminary Affirmati ve Countervailing Duty Determination and Alignment of Final Counter vailing 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 Dete rmination 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 61999, Commerce issued the final counterva iling 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 Belgiu m, Italy and South Africa, 64 Fed. Reg. 25,288 (May 11, 1999); Antidumping Duty Orders; Certai n Stainless Steel Pl ate in Coils from Belgium, Canada, Italy, the Republic of Kor ea, South Africa, and Ta iwan, 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 dat e of the preliminar y antidumping duty determination) to April 30, 2000, the period covered by the fi rst 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 m ade what it views as a mistake in its invoice entries by designating some German SSPC as being of Be lgian origin. These entries were not liquidated because Arcelor appealed the results of Commerce’s first countervailing duty administrative review (on ot her grounds), and the court iss ued 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 li quidation for Arcelor’s entries that were subject to both the c ountervailing duty order and the ant idumping duty order. Id. Ultimately, the Court of International Trade found fault with Commerce’s methodology

2008-1213, -1214 7and remanded but upheld Commerce’s determinati on, 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 Re sults” 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 par ty nor Commerce addressed the question of whether steel hot rolled in Ge rmany and not further cold rolled in Belgium was Belgian in origin. While the judicial review of the firs t 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 entri es 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 th ird period, and the entri es were liquidated or deemed liquidated on April 23, 2003. Id

. Sometime before the fourth administrativ e review, in approximately April 2004, Arcelor recognized for the first time t hat the company had mis-designated certain products as Belgian in origin that shoul d have been designated as Ge rman in origin with respect to entries subject to the firs t 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 Custom s 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 dut y 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 8F. Supp. 2d at 1287. As a result of its mis-designations, Arcelor had mistakenly made cash deposits of antidumping and countervaili ng 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 co ld 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 purs uant 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 f ourth 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 rece ived a supplemental questionnaire from Arcelor which addressed these entries. T hen, during the review, Arcelor argued that under Commerce’s “substantial transformati on” 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 wa s not subject to the antidumping order.

2008-1213, -1214 9Commerce accepted this argument over the pr otests of the domestic industry, finding the location of substant ial transformation, i.e. hot rolling, “dispositive.” Issues and Decision Memorandum for the Final Results of the Fourth Administra tive Review of the Antidumping Duty Order on Stainless Steel Plat e 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. A ccordingly, 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 ant idumping liquidation instructions from the fourth administrative review . “Liquidation Instructions for Stainless Steel Plate in Coils from Belgium Produced by Ugine & AL Z, 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 det ermined that imports of SSPC hot rolled in Germany and not further cold rolled in Belgium are not s ubject to the antidumping duty order on SSPC from Belgium. Entries of this merc handise made on or after 05/01/02 should be liquidated without regard to antidumping duties.” Id. at ¶ 2. Neither the fourth administrative revi ew nor the July 1, 2005, liquidation instructions resolved the treat ment of the remaining unliqui dated 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 10Commerce’s instructions stated that “[e]nt ries 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 Pl ate in Coils from Belgium,” Message No. 5,189,204 at ¶ 7 (July 8, 2005). In other wo rds, the SSPC was to be treated as being Belgian in origin. On July 18, 2005, Commerce issued corresponding antidumping liquidation instructions, covering the remain ing 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 pr oceedings by filing suit in the Court of International Trade challenging Commerce’s liquidation instructions and seeking to enjoin their enforcement. T he 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 meri ts 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 pr eliminary injunction be enter ed 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 decisi on on the merits of it s 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 11liquidation 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 ma y 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 c ountervailing duty orders that was otherwise outside the language of those orders.”)). The court c oncluded that Commerce in the fourth administrative review had determined that st eel hot rolled in Ge rmany 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 in structions 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 re mand and issued revised instructions. On December 18, 2007, the Court of Inte rnational Trade issued a final judgment affirming the remand results. Ugi ne & 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 c hallenge 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 12Arcelor failed to exhaust administrative rem edies. 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 matte r jurisdiction ruling and its legal decisions without deference. Consol. Bearings Co. , 348 F.3d at 1001. Unfortunately, under the stat utes and regulations, ther e is no single judicial review method for challenging the imposition of antidumping duties. If the challenge is to the final order of an administrative revi ew, 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 Ta riff 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 par ty 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 appli ed by Customs, then Cu stoms’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 mani festly inadequate.” In t’l Customs Prods., Inc. v. United States , 467 F.3d 1324, 1327 (Fed. Cir. 2006) (quoting Norcal/Crosetti

2008-1213, -1214 13Foods, 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 w ould lead to review under another subsection of 28 U.S.C. § 1581. Moreover, a plaintiff must exhaust administra tive remedies as a matter of substantive law. 28 U.S.C. § 2637 (“[T]he Court of International Trade shall, where appropriate, require t he 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 exhaust ed its administrative remedies . . . .”); Sandvik Steel Co. v. United States , 164 F.3d 596, 599-602 (Fed. Cir. 1998); but see Norsk Hydro Canada, In c. v. United States , 472 F.3d 1347, 1354-56 (Fed. Cir. 2006) (holding 28 U. S.C. § 1581(a) and (c) are eac h 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 i t. 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 det ermination made in the first administrative

2008-1213, -1214 14review order and failed to exhaust administrative remedies to that order, a failure that is assertedly fatal to its claim. 5 The premise of the gover nment’s exhaustion argument is that the first administrative review order determined that the entries in question were subject to antidumping and countervailing duties as Belg ian SSPC. There was in fact no such determination. The orders in question det ermined that certain SSPC “from Belgium” was both being dumped and subject to a fo reign countervailable subsidy and established the final antidum ping and countervailing duties for SSPC “from Belgium.” Stainless Steel Plate in Coils from Belg ium: Notice of Amended Final Results of Countervailing Duty Administrative Revi ew, 70 Fed. Reg. 18,374 (Apr. 11, 2005); Stainless Steel Plate in Coils from Belg ium: 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 det ermine whether particular steel was Belgian in origin nor did it state which entries were subject to antidumping or counterva iling 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 li quidation 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 re sults. Section 1581(i)(4) grants jurisdiction to such an action. 348 F.3d at 1002.

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

2008-1213, -1214 15Commerce argues that liquidation of t he remaining entries from the first administrative review with a correction to the country-of-orig in 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 spec ific details about SSPC imported from Belgium, included the unliquidated entries at issue here. Commerce relied upon the questionnaire responses in its dumping determinat ion and duty calculati on. 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 app lied only to SSPC “from Belgium”. We have made clear that Co mmerce’s order must be enforced based on what the order actually sa ys, 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 des ignation on its entries. However, the government does not suggest that there were any statutory or regul atory procedures for correcting Arcelor’s error in the entries that Arcelor failed to exhaust. Moreover, neither the statute nor t he regulations impose a time limit on the correction of errors such as those made here by Arcelor. I ndeed, the existence of a time lim it to challenge errors by

2008-1213, -1214 16Customs in 19 U.S.C. § 1514 6 suggests that there is no ti me limit on the correction of errors—clerical or otherwise— before liquidation, although pres umably, 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 reflect ed in the liquidation instructions. Arcelor brought the chall enge at the first opportunity. Under the circumstances there was no failure to exhaus t available administrative remedies. See Consol. Bearings Co. , 348 F.3d at 1004 (holdi ng that the exhaustion doctrine does not apply where there is no procedure to exhaust). Thus, the trial cour t properly exercised jurisdiction, and Arcelor’s claim on the meri ts is also not barred by the exhaustion doctrine. The remaining question is whether Comme rce’s liquidation instructions were erroneous when it treated the entri es 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 ‘sha ll be the basis for the assessment of countervailing or antidumping duties on ent ries 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 fo r country-of-origin determinations. See 19 U.S.C.

6 Any “clerical error, mistake of fact, or other inadvertenc e” involved in a number of determinations, including “the cla ssification 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, Comme rce is obligated to follow prior precedent absent some legitimate reas on 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 ro lled in Belgium was German in origin, not Belgian, because the proce sses 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 pr ecedent with respect to the entries in question, other than its argument—now reje cted—that Arcelor failed to exhaust administrative remedies. Indeed, as noted earlier, Commerce in this appeal does not even argue that steel hot roll ed in Germany and not further cold rolled in Belgium is Belgian in origin. Commerce now speculates that the entri es 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, Comme rce never suggested that the German origin designation was incorrect if the court appli ed its traditional substantial transformation test, requiring “a degree of pr ocessing 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 Du ty 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 182008-1213, -1214 19 http://ia.ita.doc.gov/frn/summary/bel gium/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 produc t having a new name, character and use.” (internal quotation marks omitt ed)). 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 pass ed to make the challenge. Under these circumstances, the Court of In ternational Trade was correct in concluding that the July 8, 2005, and July 18, 2005, liquidation inst ructions 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 ARMC O 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 unav ailable under 28 U.S.C. § 1581(i) because “jurisdiction under another subsecti on of § 1581 is or could have been available.” See Int’l Customs Prods., In c. v. United States , 467 F.3d 1324, 1327 (Fed. Cir. 2006) (emphasis added); see also Majority Op. at 13-14. Addi tionally, I believe that Arcelor failed to exhaust its administrative remedies. See 28 U.S.C. § 2637. Accordingly, I respectfully dissent.The majority states that “A rcelor 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 dete rmine the “normal value,” “export price,” and “dumping margin” for “each ent ry 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 per iod 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 duri ng 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 fi nal results. However, that Arcelor could have challenged the country of origin of those entries is demons trated by what actually happened during the fourth administrative re view, 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 orig in 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 re sults and liquidation instructions for the first

2008-1213, -1214 22008-1213, -1214 3 review period would have excluded the Germ an SSPC. If Commerce had come to the opposite conclusion or refused to address the argument, Arcelor could have appealed the final results to the Cour t of International Trade at that time under 28 U.S.C. § 1581(c). Thus, because Arcelor could have obt ained the relief it now seeks if it had acted during the first administrative review, t he Court of International Trade does not, in my view, have jurisdiction under § 1581(i).