CIT Dismisses Parts of Importer's Broad Challenge on AD Duties Assessed Under Invalidated AD Duty Order
The Court of International Trade on April 5 dismissed swaths of an importer’s broad challenge to the assessment of antidumping duties under a subsequently invalidated AD duty order, finding that importer only had standing to challenge AD duties on entries it itself imported and couldn’t seek reliquidation of entries before the revocation’s effective date.
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Perry Chemical Corporation had argued that, when CIT affirmed a redetermination of the investigation on polyvinyl alcohol from Thailand that zeroed out rates for all exporters, the subsequent revocation of the AD duty order should mean that no duties on PVA from Taiwan should have been assessed, even those that predated the effective date of the Commerce Department’s revocation notice. Its court challenge sought an order to that effect not only for its own entries, but for any entries of PVA from Taiwan.
First, CIT ruled that Perry could only challenge the assessment of AD duties where it suffered injury. “Perry seeks reliquidation of all entries, irrespective of whether Perry paid cash deposits on those entries. Perry alleges no particularized injury relating to entries for which it paid no cash deposits. Accordingly, to the extent that there are entries from Chang Chun during the relevant periods for which Perry did not pay the cash deposits, Perry lacks standing with respect to such entries and this Court accordingly lacks subject matter jurisdiction,” CIT said.
The court also found that, even where Perry paid cash deposits, it couldn’t order reliquidation of entries that had already liquidated by the Jan. 28, 2014, effective date of the revocation of the order on polyvinyl alcohol, even though CIT had invalidated the basis for collecting AD duties by finding fault with the final determination from the original investigation.
The Commerce Department’s liquidation instructions resulting from the revocation had applied only to unliquidated entries as of the effective date. Some of Perry’s entries had already been liquidated because Commerce had previously rescinded the relevant administrative review and ordered liquidation at the cash deposit rate at the time of entry. But as courts have previously ruled, Perry could have stopped its entries from liquidating, either by joining the court challenge of the original final determination or requesting an administrative review of the relevant period.
“Here, Commerce lawfully instructed CBP on July 18, 2013 to liquidate Chang Chun’s … entries once Chang Chun withdrew its request for an administrative review on May 24, 2013 and Commerce rescinded [the review] on July 1, 2013. There was no injunction in place from litigation related to the investigation, and there was no administrative review suspending liquidation,” CIT said. “Although Perry could have prevented its entries from being liquidated at the cash deposit rate, it slept on its rights.”
CIT ordered the dismissal of Perry’s lawsuit as it related to polyvinyl alcohol not imported by Perry, and entries that had already liquidated. The case will now proceed only as it relates to entries that were not liquidated as of the effective date of revocation.
(Perry Chemical Corporation v. U.S., Slip Op. 19-43, CIT # 15-00168, dated 04/05/19, Judge Kelly)