CIT Says Importer Challenging AD/CVD Assessments Must Challenge Protest or Scope Ruling, Not Procedures
An importer of Indian citric acid subjected to antidumping and countervailing duties on China must challenge the tariffs by way of a protest or a scope ruling, and can’t directly file a lawsuit alleging CBP did not follow the proper procedures in determining dutiability, the Court of International Trade said in a March 16 decision dismissing TR International’s lawsuit on jurisdictional grounds.
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TRI had imported the citric acid anhydrous from Posy Pharmachem, which in turn had manufactured it in India from citric acid monohydrate that had been purchased from suppliers in the same country. The processing by Posy constituted, in the view of TRI, a substantial transformation conferring Indian origin. CBP reviewed the entries, which TRI had entered type 01, and after lab testing found that no substantial transformation had occurred. But despite there being no information as to the source of the citric acid monohydrate bought by Posy, it would eventually find the citric acid anhydrous imported by TRI subject to AD/CV duties on China at rates of 156.87% and 8.14%, respectively.
TRI alleged that CBP’s rate advance was based on improper communications with the Commerce Department; exceeded CBP’s ministerial authority; and disregarded procedural requirements for issuing notices of action before liquidating TRI’s entries. It filed suit under 28 USC 1581(i), a “residual” jurisdictional provision for trade cases where normal remedies are unavailable.
But CIT found those normal remedies were available in this case, and dismissed the lawsuit. First, TRI can challenge CBP’s denials of its protests -- it has two on file, and one was already denied, CIT said. Alternatively, TRI could have requested Commerce issue a scope ruling that its citric acid imports are not subject to AD/CV duties on China, and challenged that scope ruling if it disagreed with the result. “In sum, TRI has or had one or more remedies available to it and those remedies were not manifestly inadequate,” CIT said.
(TR Int'l Trading Co. v. U.S., Slip Op. 20-34, dated 03/16/20, Judge Barnett)
(Attorneys: John Peterson of Neville Peterson for plaintiff TR International Trading Company; Justin Miller for defendant U.S. government)