Sunpreme Inc. v. United States, Solarworld Americas, Inc. , 892 F.3d 1186 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
SUNPREME INC.,
Plaintiff-Appellee
v.
UNITED STATES, SOLARWORLD AMERICAS, INC.,
Defendants-Appellants
______________________
2017-1338, 2017-1351
______________________
Appeals from the United States Court of International
Trade in No. 1:15-cv-00315-CRK, Judge Claire R. Kelly.
______________________
Decided: June 14, 2018
______________________
NANCY NOONAN, Arent Fox, LLP, Washington, DC,
argued for plaintiff-appellee. Also represented by JOHN
M. GURLEY, DIANA DIMITRIUC QUAIA.
JUSTIN REINHART MILLER, International Trade Field
Office, Commercial Litigation Branch, Civil Division,
United States Department of Justice, New York, NY,
argued for defendant-appellant United States. Also
represented by CHAD A. READLER, JEANNE E. DAVIDSON,
REGINALD T. BLADES, JR.; PAULA S. SMITH, Office of the
Assistant Chief Counsel, United States Bureau of Cus-
2 SUNPREME INC. v. UNITED STATES
toms and Border Protection, United States Department of
Homeland Security, New York, NY.
MAUREEN E. THORSON, Wiley Rein, LLP, Washington,
DC, argued for defendant-appellant SolarWorld Americas,
Inc. Also represented by TIMOTHY C. BRIGHTBILL,
STEPHANIE MANAKER BELL, TESSA V. CAPELOTO, LAURA
EL-SABAAWI, DERICK HOLT, USHA NEELAKANTAN, ADAM
MILAN TESLIK,.
______________________
Before NEWMAN, LOURIE, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
SolarWorld America Inc. and the United States ap-
peal from the judgment of the United States Court of
International Trade in favor of Sunpreme Inc., concluding
that the United States Customs and Border Protection
exceeded its authority in reaching a determination that
certain products imported by Sunpreme are covered by
the scope of antidumping and countervailing duty orders
on U.S. imports of solar cells from the People’s Republic of
China. Because the Court of International Trade lacked
jurisdiction to hear Sunpreme’s claims, we reverse.
BACKGROUND
I.
U.S. trade laws provide that “American industries
may petition for relief from imports that are sold in the
United States at less than fair value . . . , or which benefit
from subsidies provided by foreign governments.” Alle-
gheny Ludlum Corp. v. United States, 287 F.3d 1365, 1368
(Fed. Cir. 2002) (citing 19 U.S.C. § 1675b (2000)). This
relief is sought by filing an antidumping or countervailing
duty petition before the U.S. Department of Commerce
(“Commerce”) and the U.S. International Trade Commis-
sion (“Trade Commission”). Following the filing of such a
SUNPREME INC. v. UNITED STATES 3
petition, Commerce determines whether sales of the
investigated merchandise have been made at less than
fair value (“dumping”) or whether a countervailable
subsidy has been provided. 19 U.S.C. §§ 1673, 1671(a)(1).
The Trade Commission determines whether the imported
merchandise materially injures or threatens to materially
injure the relevant domestic industry. Id. §§ 1673d(b)(1),
1671d(b)(1). If Commerce’s and the Trade Commission’s
determinations are affirmative, Commerce issues an
appropriate antidumping or countervailing duty order.
Id. §§ 1673e(a), 1671e(a).
Commerce is charged with writing antidumping and
countervailing duty orders that “include[] a description of
the subject merchandise, in such detail as the administer-
ing authority deems necessary.” Id. §§ 1673e(a)(2),
1671e(a)(2). The orders also provide the antidumping and
countervailing duty margins that have been established
in the course of the investigations. Id. §§ 1673d(c)(1)(B),
1673e(a)(1), 1671d(c)(1)(B), 1671e(a)(1).
Once Commerce issues an antidumping or counter-
vailing duty order, the United States Customs and Border
Protection (“Customs”) applies and enforces the duty
orders through the assessment and collection of anti-
dumping and countervailing duties on imports of the
investigated merchandise. 19 C.F.R. §§ 159.41, 159.47,
351.211. When Customs determines a duty order covers
entered merchandise, it suspends liquidation and notifies
the importer of “determined or estimated” duties. Id.
§ 159.58(a), (b). “Liquidation” is defined as “the final
computation or ascertainment of duties on entries for
consumption or drawback entries.” Id. § 159.1.
After the publication of the duty orders, if a question
arises as to whether merchandise is encompassed by an
order, an interested party may request a scope inquiry by
Commerce to determine if a particular type of merchan-
dise is within the class or kind of merchandise described
4 SUNPREME INC. v. UNITED STATES
in an existing duty order. See 19 C.F.R. § 351.225. Com-
merce has the express authority to conduct a scope in-
quiry and to clarify the scope of an unclear order pursuant
to 19 C.F.R. § 351.225(a), and “should in the first instance
decide whether an antidumping order covers particular
products,” because “the order’s meaning and scope are
issues particularly within the expertise of that agency.”
Xerox Corp. v. United States, 289 F.3d 792, 795 (Fed. Cir.
2002). Commerce’s scope rulings may be challenged
before the Court of International Trade (“CIT”). 19 U.S.C.
§ 1516a(a)(2)(B)(vi).
II.
On October 19, 2011, Defendant-Appellant Solar-
World America Inc. (“SolarWorld”) filed antidumping and
countervailing duty petitions on imports of solar cells
from the People’s Republic of China (“PRC”). On Decem-
ber 7, 2012, following antidumping and countervailing
duty investigations by Commerce and the Trade Commis-
sion, Commerce published antidumping and countervail-
ing duty orders on certain crystalline silicon photovoltaic
cells imported from the PRC. Crystalline Silicon Photo-
voltaic Cells, Whether or Not Assembled into Modules,
from the People’s Republic of China: Countervailing Duty
Order, 77 Fed. Reg. 73,017, 73,017 (Dec. 7, 2012); Crystal-
line Silicon Photovoltaic Cells, Whether or Not Assembled
Into Modules, from the People’s Republic of China:
Amended Final Determination of Sales at Less Than Fair
Value, and Antidumping Duty Order, 77 Fed. Reg. 73,018,
73,018 (Dec. 7, 2012) (collectively, “CSPV Orders”).
Commerce established antidumping duty margins at a
PRC-wide rate of 249.96%, and a countervailing duty at
the “all others” rate of 15.24% ad valorem. Commerce
instructed Customs to require cash deposits or the posting
of a bond equal to the margins and subsidy rates in effect
at the time of entry on products covered by the CSPV
Orders. The scope language of the CSPV Orders is identi-
cal, and provides, in relevant part:
SUNPREME INC. v. UNITED STATES 5
The merchandise covered by this order is crystal-
line silicon photovoltaic cells, and modules, lami-
nates, and panels, consisting of crystalline silicon
photovoltaic cells, whether or not partially or fully
assembled into other products, including, but not
limited to, modules, laminates, panels and build-
ing integrated materials.
This order covers crystalline silicon photovoltaic
cells of thickness equal to or greater than 20 mi-
crometers, having a p/n junction formed by any
means, whether or not the cell has undergone oth-
er processing, including, but not limited to, clean-
ing, etching, coating, and/or addition of materials
(including, but not limited to, metallization and
conductor patterns) to collect and forward the
electricity that is generated by the cell.
....
Excluded from the scope of this order are thin film
photovoltaic products produced from amorphous
silicon (a-Si), cadmium telluride (CdTe), or copper
indium gallium selenide (CIGS).
CSPV Orders, 77 Fed. Reg. at 73,017, 73,018–19. The
CSPV Orders do not specifically define “thin film photo-
voltaic products.”
Plaintiff Sunpreme Inc. (“Sunpreme”) is a U.S. com-
pany that imports solar modules produced by Jiawei
Solarchina (Shenzhen) Co., Ltd. that are composed, in
part, of solar cells designed, developed, and tested at
Sunpreme’s California facility. Sunpreme’s modules are
made of “several layers of amorphous silicon less than one
micron in thickness, deposited on both sides of a substrate
consisting of a crystalline silicon wafer.” Appellee’s Br. 8.
Sunpreme’s modules are bifacial, with amorphous silicon
being deposited on both the top and bottom sides of a
substrate, and are certified by TUV, a third-party product
6 SUNPREME INC. v. UNITED STATES
certification body, to be in compliance with the require-
ments of IEC 61646, i.e. a thin film terrestrial photovolta-
ic module. J.A. 1015; 1683–84. Prior to April 2015,
Sunpreme’s solar modules were imported into the United
States as entry type “01,” the designation for ordinary
consumption entries not subject to any antidumping or
countervailing duties.
The United States maintains that Customs began to
investigate whether Sunpreme’s imports may be subject
to the CSPV orders in early 2015. See Sunpreme Inc. v.
United States, 145 F. Supp. 3d. 1271, 1279 (Ct. Int’l Trade
2016). In April 2015, Customs requested that Sunpreme
file its entries under type “03,” the designation for entries
subject to antidumping or countervailing duties. Customs
suspended liquidation on the imports and required anti-
dumping and countervailing duty cash deposits in con-
formance with the duty margins provided in the CSPV
Orders. Id. at 1281 n.6.
In response, Sunpreme disputed Customs’ decision
and provided information supporting its position that its
solar module products were outside the scope of the CSPV
Orders. Id. at 1280–81. Sunpreme provided Customs
with lab results from an independent third party identify-
ing amorphous silicon thin film layers in Sunpreme’s
solar modules, and invited Customs to its California
facility to observe its production process. Sunpreme, 145
F. Supp. 3d at 1280–81. Customs also performed its own
laboratory testing on Sunpreme’s products. Id.
Around April 20, 2015, Sunpreme began making anti-
dumping and countervailing cash deposits on its solar
modules imports. On November 16, 2015, Sunpreme filed
a request with Commerce for a scope ruling, challenging
Customs’ decision that its imports were covered by the
CSPV Orders. On December 30, 2015, Commerce initiat-
ed a formal scope inquiry.
SUNPREME INC. v. UNITED STATES 7
On December 8, 2015, twenty-two days before Com-
merce initiated the formal scope inquiry, Sunpreme filed
a complaint with the CIT, challenging Customs’ collection
of cash deposits and suspension of liquidation and seeking
a preliminary injunction to prevent Customs from collect-
ing additional cash deposits. J.A. 102. In its complaint,
Sunpreme contended that Customs “wrongly require[ed]
[Sunpreme] to enter as subject to antidumping and coun-
tervailing duties and pay cash deposits on, and suspend
liquidation of, certain entries of solar modules.” J.A. 102.
Sunpreme alleged that Customs acted ultra vires and
exceeded its ministerial task of collecting antidumping
and countervailing duties by interpreting the CSPV
Orders to cover Sunpreme’s solar modules, despite that
thin film products were expressly excluded from the
coverage of the CSPV Orders.
The United States concedes in its opening brief that
Customs does not contest the presence of a thin film of
amorphous silicon in Sunpreme’s products, but argues
that the cells in Sunpreme’s products contained other
characteristics described in the CSPV Orders, namely
being a crystalline silicon composition greater than 20
micrometers in thickness containing a p/n junction.
United States’ Opening Br. 9, 18–19. Thus, in the gov-
ernment’s view, “the presence of the thin film did not
necessarily preclude the application of the orders because
the scope of the orders provides that crystalline photovol-
taic cells are included whether or not the cell ‘has under-
gone other processing . . . and/or the addition of
materials . . . to collect and forward the electricity that is
generated by the cell.’” Id. at 9–10 (first citing CSPV
Orders, 77 Fed. Reg. at 73,017–18; then citing Sunpreme
Inc. v. United States, 190 F. Supp. 3d 1185, 1195–97 (Ct.
Int’l Trade 2016)).
The United States, together with intervenor Solar-
World, moved to dismiss for lack of subject matter juris-
diction on the grounds that Sunpreme had failed to
8 SUNPREME INC. v. UNITED STATES
exhaust its administrative remedies by not obtaining a
scope ruling from Commerce prior to filing its complaint
in the CIT. On December 14, 2015, the court granted
Sunpreme’s application for a temporary restraining order,
preventing the continued collection of estimated duty
deposits. On January 8, 2016, the court issued a prelimi-
nary injunction restraining Customs from collecting
duties on future entries, finding that Sunpreme had
shown irreparable harm from the financial hardship
associated with paying the duties. Sunpreme, 145 F.
Supp. 3d at 1294–98. The court also denied the motion to
dismiss, concluding that subject matter jurisdiction
existed under 28 U.S.C. § 1581(i). Id. at 1290–91. On
October 11, 2016, the court entered judgment for Sun-
preme and ordered Customs to return cash deposits
collected prior to the initiation of the scope inquiry, hold-
ing that Customs acted outside its authority in its unilat-
eral interpretation of the scope language of the CSPV
Orders to include Sunpreme’s solar modules, and thus
lacked authority to suspend liquidation and order cash
deposits. Sunpreme, 190 F. Supp. 3d at 1194, 1202–05.
The United States and SolarWorld appeal. We have
jurisdiction under 28 U.S.C. § 1295(a)(5).
In July of 2016, before entry of the CIT’s final judg-
ment in this case, Commerce issued its final scope deter-
mination concluding that Sunpreme’s products fall within
the scope of the CSPV Orders. J.A. 1433. Sunpreme
appeals that determination separately. See Sunpreme
Inc. v. United States, 256 F. Supp. 3d 1265 (Ct. Int’l Trade
2017), appeal docketed, No. 18-1116 (Fed. Cir. Oct. 30,
2017).
DISCUSSION
The primary issue on appeal is whether the CIT had
jurisdiction over Sunpreme’s complaint. We review
jurisdictional rulings without deference. Trs. in Bankr. of
SUNPREME INC. v. UNITED STATES 9
N. Am. Rubber Thread Co., Inc. v. United States, 593 F.3d
1346, 1351 (Fed. Cir. 2010).
The CIT’s jurisdiction is governed by 28 U.S.C.
§ 1581. Relevant to this case are subsections (a), (c), and
(i). Section 1581(a) grants the CIT jurisdiction over
Customs’ denial of protests, and “provides no jurisdiction
for protests outside the[] exclusive categories” listed in 19
U.S.C. § 1514(a). Mitsubishi Elecs. Am., Inc. v. United
States, 44 F.3d 973, 976 (Fed. Cir. 1994). Section 1581(c)
grants the CIT jurisdiction to review Commerce’s scope
ruling determinations. Section 1581(i) embodies a “resid-
ual” grant of jurisdiction, and may not be invoked when
jurisdiction under another subsection of § 1581 is or could
have been available, unless the remedy provided under
that other subsection would be manifestly inadequate.
Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364,
1371 (Fed. Cir. 2002). “[W]hen relief is prospectively and
realistically available under another subsection of 1581,
invocation of subsection (i) is incorrect.” Chemsol, LLC v.
United States, 755 F.3d 1345, 1354 (Fed. Cir. 2014).
Where another remedy is or could have been available,
the party asserting § 1581(i) jurisdiction has the burden
to show that the remedy would be manifestly inadequate.
Id. at 1349.
The CIT concluded that it lacked jurisdiction over
Sunpreme’s claims under § 1581(a) or (c), but that it
possessed the residual grant of jurisdiction under
§ 1581(i). Sunpreme, 145 F. Supp. 3d at 1290–92. The
CIT’s determination that it lacked jurisdiction under
§ 1581(a) or (c) rested primarily on its reading of Sun-
preme’s complaint as challenging Customs’ allegedly ultra
vires decision that Sunpreme’s modules were subject to
the CSPV Orders. Id. at 1284 (“The court finds [Sun-
preme] is challenging [Customs’] unilateral interpretation
of ambiguous scope language in excess of its authority.”).
The CIT reasoned that “[w]here factual determinations
alone do not permit [Customs] to determine whether a
10 SUNPREME INC. v. UNITED STATES
good is within the scope or outside the scope of the Or-
ders, goods must be considered outside of the scope until
Commerce clarifies or interprets the Orders and clarifies
what products should be included.” Id. at 1288. The CIT
concluded that it lacked jurisdiction under § 1581(a)
because such an ultra vires act by Customs does not
qualify as a protestable decision under § 1514(a). Id. at
1289–90. The CIT likewise found that review was una-
vailable under § 1581(c), which only provides jurisdiction
for scope ruling determinations by Commerce. Id. at
1286. Having concluded that jurisdiction was unavailable
under § 1581(a) or (c), the CIT determined that the resid-
ual provision § 1581(i) provided jurisdiction over Sun-
preme’s complaint that Customs “failed ‘to properly
perform its ministerial function to apply the instructions
Commerce issued to [Customs] relating to the Orders . . .’
which ‘contain a specific, unqualified exclusion for thin
film products.’” Id. at 1290 (second alteration in original).
We disagree.
We begin with § 1581(a). In Xerox, we held that
where the scope of a duty order is “unambiguous and
undisputed, and the goods clearly do not fall within the
scope of the order,” Customs’ misapplication of the duty
order is a protestable decision reviewable by the CIT
under § 1581(a). 289 F.3d at 795. Here, the parties and
the CIT recognize that since a dispute exists over the
scope and application of the CSPV Orders, Customs’
decision is not protestable and thus not subject to review
under § 1581(a). See Sunpreme, 145 F. Supp. 3d at 1285;
SolarWorld’s Opening Br. 18.
The parties also recognize that § 1581(c) does not ap-
ply in this case. Section 1581(c) provides jurisdiction over
challenges to Commerce’s scope ruling determinations.
Here, at the time Sunpreme filed its complaint in Decem-
ber of 2015, Commerce had not yet issued a reviewable
scope ruling determination. Since Sunpreme was not
SUNPREME INC. v. UNITED STATES 11
challenging a scope ruling from Commerce, § 1581(c) does
not apply.
The CIT determined that it possessed subject matter
jurisdiction under § 1581(i), the residual provision. We
disagree and hold that the CIT lacked jurisdiction under
§ 1581(i) because there existed a remedy under another
subsection that was not manifestly inadequate. Section
1581(i) “may not be invoked when jurisdiction under
another subsection of § 1581 is or could have been availa-
ble, unless the remedy provided under that other subsec-
tion would be manifestly inadequate.” Int’l Custom
Prods., Inc. v. United States, 467 F.3d 1324, 1327 (Fed.
Cir. 2006) (quoting Norcal/Crosetti Foods, Inc. v. United
States, 963 F.2d 356, 359 (Fed. Cir. 1992)). Not only was
jurisdiction available under another subsection of § 1581,
namely subsection (c), Sunpreme was required to exhaust
the administrative remedies available to it in the form of
a scope ruling inquiry and scope ruling determination.
The problem Sunpreme cannot overcome is that it failed
to wait until it had a formal scope ruling in hand prior to
filing suit.
The doctrine of exhaustion of administrative remedies
provides that judicial relief is not available for a supposed
or threatened injury until the prescribed administrative
remedy has been exhausted. Sandvik Steel Co. v. United
States, 164 F.3d 596, 599 (Fed. Cir. 1998). When a ques-
tion arises as to whether certain goods are within the
scope of an antidumping duty order, importers should
first seek a scope ruling from Commerce. Id. at 598–99.
This is because Commerce “should in the first instance
decide whether an antidumping order covers particular
products,” because “the order’s meaning and scope are
issues particularly within the expertise of that agency.”
Id. at 600; see also JCM, Ltd. v. United States, 210 F.3d
1357, 1359 (Fed. Cir. 2000) (“To allow a party to elect to
proceed under section 1581(i), without having first availed
himself of the remedy provided by section 1581(c), would
12 SUNPREME INC. v. UNITED STATES
undermine the integrity of the clear path Congress in-
tended a claimant to follow.”).
When an importer disputes Customs’ application of an
antidumping or countervailing duty order, the proper
remedy is for the importer to seek a scope inquiry from
Commerce, the result of which may subsequently be
challenged before the CIT. See 19 U.S.C. § 1514(b) (stat-
ing that Customs’ decisions on trade remedy orders are
final and conclusive unless the importer files a complaint
under 19 U.S.C. § 1516a, the statutory provision provid-
ing for challenges to Commerce scope determinations). By
filing a complaint with the CIT before obtaining a scope
ruling, Sunpreme has circumvented the established
administrative procedure for determining the scope of an
antidumping or countervailing duty order. Permitting
such circumventions would discourage importers from
seeking scope rulings and undermine the remedial
scheme established by Congress. See Nat’l Corn Growers
Ass’n v. Baker, 840 F.2d 1547, 1558 (Fed. Cir. 1988)
(holding that where Congress has prescribed a particular
track for a claimant to follow, in administrative or judicial
proceedings, and particularly when the claim is against
the United States, the remedy will be exclusive).
Sunpreme’s characterization of its appeal as challeng-
ing Customs’ allegedly ultra vires action is unavailing.
“[A] party may not expand a court’s jurisdiction by crea-
tive pleading.” Norsk Hydro Can., Inc. v. United States,
472 F.3d 1347, 1355 (Fed. Cir. 2006). Instead, “we look to
the true nature of the action in the district court in de-
termining jurisdiction of the appeal.” Id. (quoting Wil-
liams v. Sec’y of Navy, 787 F.2d 552, 557 (Fed. Cir. 1986)).
Here, Sunpreme’s complaint indicates that it is seeking
the refund of cash deposits, ceasing the suspension of
liquidation for its entries, and preventing the collection of
cash deposits and suspension of liquidation in the future.
But this relief is the very relief associated with a scope
ruling determination, which demonstrates that Sunpreme
SUNPREME INC. v. UNITED STATES 13
is in fact seeking a decision that its products are not
subject to the scope of the orders. The appropriate reme-
dy for this type of claim is to request a scope ruling from
Commerce. Sandvik, 164 F.3d at 598–99. Once an ad-
verse scope ruling is obtained, a complaint may be filed
with the CIT pursuant to that court’s jurisdiction under
§ 1581(c).
We next consider whether that remedy was manifest-
ly inadequate. Sunpreme argues that any remedy outside
of § 1581(i) would cause significant financial hardship and
therefore would be manifestly inadequate. Sunpreme’s
Br. 42. This argument is without merit. This court’s
cases make clear that mere allegations of financial harm
do not render a remedy established by Congress manifest-
ly inadequate. Int’l Custom Prods., 467 F.3d at 1327. For
example, we have noted that to be manifestly inadequate,
the protest must be an “exercise in futility, or ‘incapable
of producing any result; failing utterly of the desired end
through intrinsic defect; useless, ineffectual, vain.’”
Hartford Fire Ins. Co. v. United States, 544 F.3d 1289,
1294 (Fed. Cir. 2008) (emphasis omitted) (citing Int’l
Custom Prods., 467 F.3d at 1328). Nor can delay serve as
the basis for manifest inadequacy; “delays inherent in the
statutory process do not render it manifestly inadequate.”
Int’l Custom Prods., 467 F.3d at 1327.
Sunpreme has not demonstrated that obtaining a
scope ruling would have been an exercise in futility,
useless or incapable of producing the result it seeks.
Here, requiring Sunpreme to exhaust the administrative
remedies would hardly deprive Sunpreme of the oppor-
tunity for full relief. Had Commerce concluded that
Sunpreme’s modules were out of scope, Customs would
have lifted the suspension of liquidation on Sunpreme’s
entries and refunded any cash deposits. See 19 C.F.R.
§ 351.225(l)(3). The statute does not prohibit, and the
14 SUNPREME INC. v. UNITED STATES
pertinent regulations clearly contemplate, that Customs
can suspend liquidation pre-scope inquiry. 1 In this case,
the suspension of liquidation mitigates the long-term
effect of any alleged financial hardship to Sunpreme by
ensuring the return of cash deposits pending the merits of
its scope dispute.
CONCLUSION
Jurisdiction under § 1581(i) may not be invoked when
jurisdiction under any other subsection is or could have
been available. Sunpreme was required to exhaust its
administrative remedies by seeking a scope ruling from
Commerce, which it could have subsequently challenged
under § 1581(c) had the ruling been unfavorable. The
remedy under § 1581(c) cannot, in this case, be said to be
manifestly inadequate such that it provides the CIT with
jurisdiction to hear the present action under § 1581(i).
Accordingly, the judgment of the CIT is reversed.
REVERSED
COSTS
No costs.
1 Section 351.225(l)(1) provides that when a scope
inquiry is initiated “and the product in question is already
subject to suspension of liquidation, that suspension of
liquidation will be continued” pending the results of the
scope inquiry. 19 C.F.R. § 351.225(l)(1) (emphasis added).
Should Commerce conclude that the product in question is
not included within the scope of the order, suspension of
liquidation on the product is ended and Commerce will
order Customs to refund any cash deposits or release any
related bonds. “If the Secretary initiates a scope inquiry,
any prior suspension of liquidation is continued until the
administrative proceeding is concluded.” Sandvik Steel,
164 F.3d at 599 (citing 19 C.F.R. § 351.225(l)).