from the United States Court of International Trade in No.
1:15-cv-00072-RWG, Senior Judge Richard W. Goldberg.
L. LaFrankie, Crowell & Moring, LLP, Washington, DC,
argued for plaintiff-appellant. Also represented by Alexander
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.
Lourie, Dyk, and Taranto, Circuit Judges.
Taranto, Circuit Judge.
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.
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.
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.
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."
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).
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).
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%.
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).
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.
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
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
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 ...