TFTEA Reliquidation Deadline Changes Not Retroactive, CIT Says
Changes to reliquidation procedures recently enacted by Congress don’t affect reliquidations that occurred before the law took effect in 2016, the Court of International Trade said in a court decision released to the public on May 31 (here). The deadline for any reliquidations before the Trade Facilitation and Trade Enforcement Act was signed into law on Feb. 24, 2016, is 90 days after notice of liquidation is given to the importer, not 90 days after the liquidation itself, it said.
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Great American Insurance Company, surety for an importer of wooden bedroom furniture, had argued TFTEA’s reliquidation provisions are retroactive. The entry at issue in the case had been deemed liquidated in February 2009. CBP posted a notice of deemed liquidation in December 2009, then reliquidated the entry at a higher antidumping duty rate in January 2010, after discovering the importer had listed the wrong AD duty case number for the Chinese exporter.
Great American said the reliquidation was invalid because it came well after the applicable deadline of 90 days after the February 2009 deemed liquidation. The court had already ruled the deadline was actually 90 days after notice of the deemed liquidation, not the deemed liquidation itself (see 1511170068), but the surety argued the intervening enactment of the law should force the court to reconsider. But the CIT held to its earlier position, finding no evidence that the change was meant to be retroactive. Also, the fact that Congress felt the need to enact the change meant that it previously interpreted the deadline to run from the notice date.
CIT also found the period that elapsed between the deemed liquidation and the reliquidation of the entry was reasonable. Though there is little case law on what exactly is a reasonable period of time for reliquidation, the facts in this case support CBP’s actions, it said. The entry was only deemed liquidated in February 2009 because of the errant AD duty case number on the importer’s entry documentation. CBP had thought the entry subject to an injunction. When CBP discovered the error, and that the entry should have actually been deemed liquidated because the exporter named on the entry was not subject to the injunction, it acted quickly, with only about three months elapsing between the discovery of the error and posting of the deemed liquidation notice.
Ruling in the government’s favor in the penalty action, CIT found Great American liable for the full $50,000 bond amount, plus interest. The court deferred judgment on the actual interest amount while it awaits a related Federal Circuit decision.
(U.S. v. Great Am. Ins. Co. of N.Y., Slip Op. 17-61, CIT # 15-00047, dated 05/18/17, Judge Barnett)
(Attorneys: Monica Triana for plaintiff U.S., Barry Boren for defendant Great American Insurance Company of New York)