Belgium v. U.S.

• Decision Date: 07 January 2009
• Docket Number: No. 2008-1213.,No. 2008-1214.,2008-1213.,2008-1214.
• Citation: 551 F.3d 1339
• Parties: 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.
• Court: U.S. Court of Appeals — Federal Circuit

551 F.3d 1339

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.

No. 2008-1213.

No. 2008-1214.

United States Court of Appeals, Federal Circuit.

January 7, 2009.

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.

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).

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 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 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 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 1999, Commerce issued the final countervailing duty order...