Schall, Circuit Judge, Friedman, Senior Circuit Judge, and Gajarsa, Circuit Judge.
The opinion of the court was delivered by: Friedman, Senior Circuit Judge.
Both cases appealed from: United States Court of International Trade
Judge Donald Pogue for 97-1261 Judge Evan J. Wallach for 97-1338
The issue in these two cases, which we decide in a single opinion, is whether the failure of an importer to exhaust its administrative remedy by seeking a ruling by the Department of Commerce ("Commerce") that an antidumping order does not cover certain products it imported, precludes it from obtaining review of that issue in the Court of International Trade by there challenging the United States Customs Service's ("Customs") denial of its subsequent protest to Customs' assessment of antidumping duties on the products. The Court of International Trade dismissed the suits for want of jurisdiction. We affirm.
A. The regulatory scheme.
Upon importation of merchandise into the United States, the importer deposits with Customs an amount equal to the duties that the port director estimates will be owed when the entries of merchandise are "liquidated." See 19 C.F.R. §§ 141.101, 141.103, 159.1 (1998). "Liquidation" is defined as "the final computation or ascertainment of the duties or drawback accruing on an entry." § 159.1.
As part of its "final computation or ascertainment" of duties, Customs determines the classification of the entered merchandise under the Harmonized Tariff Schedule of the United States. See 19 U.S.C. § 1202 (1994); 19 C.F.R. § 152.11. The importer may within 90 days of liquidation file a protest with Customs challenging the classification of its merchandise. See 19 C.F.R. §§ 174.11(b), 174.12(e). If Customs denies the protest, the importer may challenge the classification by filing suit in the Court of International Trade. See 28 U.S.C. § 1581(a) (1994). If a timely protest is not filed, the duty that Customs has assessed is "final and conclusive," 19 U.S.C. § 1514(a) (1994 & Supp. II 1996), and not subject to judicial challenge.
Following determinations (a) by Commerce that foreign goods are being "dumped" in the United States, i.e., sold there for below their fair market value, and (b) by the International Trade Commission that the effect of such sales is to injure an American industry, Commerce may issue an antidumping order imposing additional duties upon the "dumped" imports designed to eliminate the differential. See 19 U.S.C. § 1673 (1994). An adversely affected person may challenge an antidumping order (or the failure to issue one) by filing suit in the Court of International Trade. See 28 U.S.C. § 1581(c) (1994); 19 U.S.C. §§ 1516a(a)(2)(A) (Supp. II 1996), 1516a(a)(2)(B)(i), (ii) (1994).
Customs applies and enforces the antidumping orders, upon referral from Commerce. See 19 C.F.R. §§ 159.41, 351.211. When Customs believes an antidumping order covers entered merchandise, it "suspends" liquidation and notifies the importer of "determined or estimated" antidumping duties. 19 C.F.R. § 159.58(a).
In the administration and application of antidumping orders, questions frequently arise whether those orders cover particular imports. By regulation, Commerce has provided an administrative procedure for determining that issue, i.e., a "scope ruling," in which Commerce determines whether a particular import is within the scope of the antidumping order. See 19 C.F.R. § 351.225. Within 30 days, a Commerce scope determination may be challenged in the Court of International Trade. See 28 U.S.C. § 1581(c) (1994); 19 U.S.C. §§ 1516a(a)(2)(A) (Supp. II 1996), 1516a(a)(2)(B)(vi) (1994).
In each of these cases, when the importer entered its products into the United States, Customs suspended liquidation and required the deposit of antidumping duties to which the products would be subject if an outstanding antidumping duty order covered them. Neither importer timely sought a scope determination. Instead, each waited until Commerce liquidated the entries, thereby subjecting them to the antidumping duties, filed with Customs a protest against the liquidation and, after Customs denied the protest, filed suit in the Court of International ...