CIT Says Importers Can Sue CBP for Some AD/CVD Decisions; Denies Motion to Dismiss
Importers can file lawsuits against Customs for denying their antidumping and countervailing duty-related protests if they are challenging a clear CBP error, said the Court of International Trade May 13 as it denied CBP’s motion to dismiss a lawsuit brought by LDA Incorporado. Although CBP cannot normally be challenged for AD/CV duty decisions -- that charge lies with the Commerce Department and International Trade Commission -- in this case, LDA took issue with CBP’s application of Commerce’s instructions, and not the instructions themselves.
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LDA says its steel electrical conduits are exempted from AD/CV duties on circular welded pipe from China, but CBP nonetheless sent them a notice of action in 2010 ordering payment of a 122.83% in combined AD/CV duties when it found to the contrary. When LDA protested, CBP advised it to get a scope ruling from the Commerce Department. But according to LDA, it didn’t need one. The language of Commerce’s scope says it “does not include … finished electrical conduit.” In effect, LDA argued that Commerce had already spoken, and CBP had ignored it.
CIT agreed that CBP made a protestable decision when it rate advanced LDA’s entry, and allowed the lawsuit to go forward. “To find otherwise would relieve Customs from ever applying a specific exclusion in an order unless Commerce had already issued a scope ruling,” said CIT. “It would also require an importer to seek a scope ruling even if Customs made a clear error applying an order,” it said. Such a finding would transform Customs’ purportedly ministerial role in reading and applying the terms of the scope into a discretionary one immune from judicial review.”
(LDA Incorporado v. U.S., Slip Op. 14-54, dated 05/13/14, Judge Kelly)
(Attorneys: Ronald Wisla of Kutak Rock for plaintiff LDA Incorporado; Saul Davis for defendant U.S. government)