Revocations in AD/CVD Sunset Reviews Don't Make Liquidated Entries Duty-Free, CIT Says
Already-liquidated entries aren’t eligible for refunds after an antidumping or countervailing duty order is revoked, even if the entries came after the effective date of revocation, the Court of International Trade said in a decision issued Oct. 25 (here). The court denied Thyssenkrupp’s attempts to reclaim antidumping duties it paid on corrosion resistant steel products it imported from Germany, finding CBP’s liquidation of the entries was not protestable, and that Commerce’s liquidation instructions complied with AD/CV duty laws that mandate sunset review revocations apply only to future entries, not retroactively.
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At the time Thyssenkrupp entered the steel in the first half of 2012, the entries were covered by an antidumping duty order on corrosion-resistant steel products from Germany. Thyssenkrupp paid a cash deposit of 10.02%. Commerce later began an annual administrative review covering the period that included Thyssenkrupp’s entries, and when no review was requested, ordered liquidation in November and December of 2012 “as entered,” assessing duties at an amount equal to the cash deposit.
In the meantime, Commerce was also conducting a sunset review of the AD duty order. After the International Trade Commission found no indication that ending the duties would cause injury to U.S. industry, Commerce revoked the order effective in February 2012. It sent a message in 2013 ordering CBP to liquidate all “unliquidated entries” on or after the revocation’s effective date without assessing AD duties. That did not include Thyssenkrupp’s entries, even though they came on or after the effective date.
Thyssenkrupp protested, claiming that the liquidations weren’t final because they were subject to a protest and that the entries should therefore be reliquidated duty-free. CBP rejected the entries as non-protestable, and CIT agreed. First, the protests were untimely. Protests may only be filed after the protestable decision is made, and CBP was still within the six-month period it has to apply Commerce’s 2013 liquidation instructions when the protests were filed. Thyssenkrupp didn’t know how CBP would interpret the instructions, and whether its entries would be reliquidated, at the time it filed the protests, CIT said. The protests were also invalid because CBP’s correct application of Commerce’s unambiguous instructions was not a protestable event, the court said. And because CBP rejected the protests, rather than denying them, the agency’s decision on the protests could not be challenged at CIT, it said.
Addressing Thyssenkrupp’s argument that Commerce’s instructions to liquidate unliquidated entries duty-free should have applied to its entries, CIT found the instructions were correctly written and applied. Sunset reviews are meant to apply prospectively, not retroactively, “with the key inquiry being whether termination of suspended investigations ‘would be likely to lead’ to the dumping of foreign imports into a particular market in the future,” CIT said. “Even though the effective date of the revocation was retroactive, interpreting the term ‘unliquidated’ to mean ‘not previously-liquidated’ ensures that the effect of the sunset review ‘is entirely prospective,’ in that it applies only to future liquidations,” it said. “Accordingly, reading Commerce’s instructions to exclude [Thyssenkrupp’s] entries comports with the purpose of the sunset review, since those entries were previously liquidated in accordance with the order then in effect,” CIT said.
(Thyssenkrupp Steel North America, Inc. v. U.S., Slip Op. 16-101, CIT # 15-00072, dated 10/25/16, Judge Goldberg)