CIT Jurisdiction Issues Compound AD/CVD Scope Difficulties for Importers, Says Judge
NEW YORK -- The Court of International Trade’s hazy jurisdiction over scope issues is one of the issues that is creating headaches for importers with products that are potentially subject to antidumping and countervailing duties, said CIT Judge Jane Restani at the Court of International Trade Judicial Conference on Dec. 1. An unclear dividing line between Commerce Department and CBP scope responsibilities means that importers that want to protect themselves have to take both routes, by filing a scope ruling request and a protest, in the hope of getting to court to challenge a finding their products are subject to AD/CV duties, said Restani.
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Two decisions from the U.S. Court of Appeals for the Federal Circuit shed some light on the jurisdictional issue, but they still left some gray area, said Restani. In 1998, CAFC ruled in Sandvik v. U.S. that scope issues are generally not protestable at CBP, and must be resolved through Commerce scope proceedings. But in its 2002 decision in Xerox v. U.S., the court appeared to partially reverse itself, holding that when the scope is clear and CBP committed the error then the importer may protest at CBP and take the case to court if the protest is denied. The problem, according to Restani, is sometimes it isn’t always apparent whether the scope is clear. The result is importers are left in the dark until CBP finds an entry is subject to AD/CV duties. Then the merchandise liquidates, and the importer has to file a protest and hope the court finds it protestable, said Restani.
The simpler process of only requesting a scope ruling once a product’s AD/CVD liability is called into question is not a real solution for importers, said Donald Cameron, a lawyer with Morris Manning, who moderated the panel discussion. Ideally, if Commerce is quick to issue its scope ruling, CBP would have it at the time of liquidation. But Cameron said he has participated in scope inquiries that have taken over a year and a half at Commerce, by which point entries may have liquidated.