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Thyssenkrupp Steel North America, Inc. v. United States

United States Court of Appeals, Federal Circuit

March 30, 2018

THYSSENKRUPP STEEL NORTH AMERICA, INC., Plaintiff-Appellant
v.
UNITED STATES, Defendant-Appellee

          Appeal from the United States Court of International Trade in No. 1:15-cv-00072-RWG, Senior Judge Richard W. Goldberg.

          Robert L. LaFrankie, Crowell & Moring, LLP, Washington, DC, argued for plaintiff-appellant. Also represented by Alexander Schaefer.

          Justin Reinhart Miller, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, New York, NY, argued for defendant-appellee. Also represented by Chad A. Readler, Jeanne E. Davidson, Claudia Burke, Amy Rubin; Beth Brotman, Office of the Assistant Chief Counsel, United States Bureau of Customs and Border Protection, United States Department of Homeland Security, New York, NY.

          Before Lourie, Dyk, and Taranto, Circuit Judges.

          Taranto, Circuit Judge.

         ThyssenKrupp Steel North America, Inc., sued the United States in the Court of International Trade to challenge the imposition of an antidumping duty on several of its imports. The imports entered the United States after the date as of which, the government later determined, antidumping duties were no longer warranted. The prescribed direct review routes for administrative and judicial challenges to such impositions remained open at the time of that determination, and ThyssenKrupp timely filed administrative challenges. After those challenges were denied, ThyssenKrupp invoked the Court of International Trade's jurisdiction to obtain relief, stating two claims, one under 28 U.S.C. § 1581(a) and one under § 1581(i). The court dismissed the § 1581(a) claim for lack of jurisdiction and granted judgment on the pleadings in favor of the government on the § 1581(i) claim, thus leaving the entries at issue subject to the antidumping duty, even though the entries were made when duties were no longer legally warranted.

         We reverse the dismissal of the § 1581(a) claim. We conclude that § 1581(a) is available for the relief ThyssenKrupp seeks. ThyssenKrupp invokes § 1581(i) only as an alternative, conditioned on the court holding § 1581(a) unavailable. Because we hold that § 1581(a) is available, we vacate the Court of International Trade's ruling on the § 1581(i) claim. The case is remanded.

          I

         A

         An antidumping duty is imposed on imports in certain defined circumstances, including if (1) the U.S. Department of Commerce determines that the foreign merchandise is, or is likely to be, sold in the United States at less than its fair value, and (2) the International Trade Commission (ITC) determines that a domestic industry is, or is threatened with, material injury by reason of the imports. 19 U.S.C. § 1673. If, for particular merchandise, Commerce and the ITC make those affirmative determinations, Commerce publishes an antidumping duty order that directs the U.S. Customs and Border Protection (Customs) to assess an antidumping duty on imports of such merchandise. 19 U.S.C. § 1673e(a). Subsequently, annual "administrative reviews, " if requested, are conducted to consider application of the order to entries made during discrete periods of time. 19 U.S.C. § 1675(a); see 19 C.F.R. § 351.213. Every five years, what is called here a "sunset review" is conducted to consider revocation of the order, based on whether revocation would likely lead to further dumping and material injury. 19 U.S.C. § 1675(c), (d)(2); see 19 C.F.R. § 351.218.

         The actual collection of an antidumping duty by Customs occurs in stages under various statutes and implementing regulations. An importer becomes liable for any antidumping duty as soon as the foreign merchandise arrives in the United States. See 19 C.F.R. § 141.1(a). But liability is not conclusively assessed at that time. Within 15 days of arrival in the United States, foreign merchandise is "entered, " meaning that documentation of the importation is filed with Customs. See 19 U.S.C. § 1484(a); 19 C.F.R. §§ 141.0a(a), 141.4(a), 141.5, 141.11(b). Generally, the importer deposits the estimated duty at the time of entry and the merchandise is released into the country. See 19 U.S.C. §§ 1505(a), 1673e(a)(3), 1673g(a); 19 C.F.R. §§ 141.101, 141.103. Final determination of the amount of liability for antidumping duties typically occurs later. "[T]he United States uses a 'retrospective' assessment system" to determine the "final liability" for antidumping duties. 19 C.F.R. § 351.212(a). "Generally, the amount of the duties to be assessed is determined" in a § 1675(a) administrative review covering the period of time encompassing the entry. Id. "If a review is not requested, duties are assessed at the rate established in the completed review covering the most recent prior period or, if no review has been completed, the cash deposit rate applicable at the time merchandise was entered." Id.

         Once the antidumping duty is determined, Customs will "liquidate" the entries. See 19 U.S.C. §§ 1500(d), 1505(b); 19 C.F.R. § 159.2. Although "liquidate" is not defined by statute, a regulation declares that liquidation is "the final computation or ascertainment of duties on entries." 19 C.F.R. § 159.1. An initial Customs "final computation or ascertainment, " however, is not entirely "final": it is, for example, subject under defined circumstances to internal agency alteration through a "protest" mechanism, see 19 U.S.C. § 1514, and thereafter to judicial review, 28 U.S.C. § 1581. See also 19 U.S.C. § 1501 (addressing reliquidation); 19 C.F.R. § 159.6(b) (same). After liquidation, Customs generally refunds to the importer the difference between the entry deposit and a smaller liquidation amount or bills the importer for the difference between the entry deposit and a larger liquidation amount. 19 U.S.C. § 1505(b); 19 C.F.R. § 159.6(c).

         B

         ThyssenKrupp imports corrosion resistant carbon steel flat products (CORE) from Germany. In 1993, Commerce issued an order that imposed an antidumping duty on such imports. Certain Hot-Rolled Carbon Steel Flat Products, Certain Cold-Rolled Carbon Steel Flat Products, Certain Corrosion-Resistant Carbon Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate from Germany, 58 Fed. Reg. 44, 170 (Dep't of Commerce Aug. 19, 1993). Until 2012, CORE from Germany was subject to that antidumping duty order. See Corrosion-Resistant Carbon Steel Flat Products from Germany and Korea, 77 Fed. Reg. 301, at 301 (Int'l Trade Comm'n Jan. 4, 2012).

         Between February 14, 2012, and July 14, 2012, ThyssenKrupp made eight entries of CORE from Germany. Commerce solicited requests for an administrative review of the antidumping duty for CORE from Germany for the period August 1, 2011, through July 31, 2012, but no interested party submitted such a request. For that reason, on October 17, 2012, Commerce issued "automatic liquidation instructions" that directed Customs to "[l]iquidate all [CORE] entries for all firms" for that time period, including all eight of ThyssenKrupp's entries, under Message No. 2291302. J.A. 318; see 19 C.F.R. § 351.212(c)(1)(i) (Commerce will instruct Customs to assess antidumping duties if no timely request for administrative review is received). Customs subsequently announced its liquidation calculation as to six of ThyssenKrupp's eight entries on November 16, 2012, and as to the remaining two entries on December 21, 2012. Customs assessed the antidumping duties at the prevailing rate: 10.02%.

         Meanwhile, on January 3, 2012, the ITC instituted its required sunset review of the original 1993 antidumping duty order. See Corrosion-Resistant Carbon Steel Flat Products from Germany and Korea, 78 Fed. Reg. 15, 376, at 15, 376 (Int'l Trade Comm'n Mar. 11, 2013); Corrosion-Resistant Carbon Steel Flat Products from Germany and Korea, 77 Fed. Reg. at 301. More than a year later, on March 11, 2013, the ITC concluded, and informed Commerce, that revocation of the antidumping duty order would not likely lead to material injury to a domestic industry. Corrosion-Resistant Carbon Steel Flat Products from Germany and Korea, 78 Fed. Reg. at 15, 376. Eight days later, on March 19, 2013, acting under 19 U.S.C. § 1675(d)(2), Commerce published notice of the revocation of the antidumping duty order for CORE from Germany. Corrosion-Resistant Carbon Steel Flat Products from Germany and the Republic of Korea, 78 Fed. Reg. 16, 832 (Dep't Commerce Mar. 19, 2013).

         In that notice, Commerce stated that, "[p]ursuant to [19 U.S.C. § 1675(d)(2)] and 19 CFR § 351.222(i)(2)(i), the effective date of revocation is February 14, 2012." Id. at 16, 833. That date was "the fifth anniversary of the effective date of publication in the Federal Register of the previous continuation of" the antidumping order in the earlier sunset review. Id. (emphasis omitted). All of the ThyssenKrupp entries at issue here were made after February 14, 2012.

         In the same notice, Commerce added that it would (1) instruct Customs "to terminate the suspension of liquidation and to discontinue the collection of cash deposits on entries of the subject merchandise, entered or withdrawn from warehouse, on or after February 14, 2012, " (2) "instruct [Customs] to refund with interest all cash deposits on entries made on or after February 14, 2012, " and (3) "complete any pending or requested administrative reviews of these orders covering entries prior to February 14, 2012, " which "will continue to be subject to suspension of liquidation and antidumping and/or countervailing duty deposit requirements and assessments." Id.

         On April 4, 2013, Commerce issued such instructions to Customs. Those instructions provided, in pertinent part:

1. As a result of a five-year ("sunset") review, Commerce has revoked the antidumping duty or- der on [CORE] from Germany. . . . The effective date of the revocation is 02/14/2012.
2. [Customs] is directed to terminate the suspension of liquidation for all shipments of CORE from Germany which were entered, or withdrawn from warehouse, for consumption on or after 02/14/2012. All entries of CORE from Germany that were suspended on or after 02/14/2012 should be liquidated without regard to antidumping duties (i.e., release all bonds and refund all cash deposits with interest).
3. Liquidation instructions covering certain entries of CORE from Germany during the period 08/01/2011 through 07/31/2012 were issued under message number 2291302, dated 10/17/2012. However, as noted [sic] paragraph 1 above, this order has been revoked, effective 02/14/2012. Accordingly, all unliquidated entries of CORE from Germany entered, or withdrawn from warehouse, for ...

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