Tuesday, July 31, 2012

Testing Protests

The content and timeliness of customs protests is a perennial topic of discussion. I covered here, for example, and probably in a dozen other places. Two recent decisions from the Court of International have had to wade back into that swamp.

First, some background. Except in unusual circumstances, when Customs and Border Protection liquidates an entry, the liquidation and all of Customs' decisions wrapped into it become final and conclusive. This is what prevents Customs from trying to collect duties from an importer after liquidation. There are a few exceptions. The first is where the importer was negligent, grossly negligent, or committed fraud in connection with the entry. In that case, Customs can collect the amount owed plus assess a penalty. That protects Customs in the event it liquidated an entry based on bad information. The flip side is that an entry is not final if the importer files a valid protest within 180 days of liquidation. This protects the importer in the event Customs has made a mistake in the liquidation.

The problem for importers is that protests need to be timely and otherwise valid. Timeliness is the easy part: the importer has 180 days. That's it. No extensions and no excuses. Validity relates to whether the protest is of a "protestable event" and whether the nature of the challenged decision was sufficiently well explained. If the protest challenges something that is not protestable (e.g., the collection of money through a voluntary tender) or fails to explain the challenged decision, the protest will fail.

This is important for two reasons. First, a valid protest might actually result in corrective action from Customs. Much more tragically, an invalid protest might result in the loss of any opportunity to have the denied protest reviewed by the Court of International Trade.

In Acme Furniture Industry, Inc. v. United States, the first question was whether the importer's protest addressed a protestable event. Congress has listed protestable events in 19 U.S.C. § 1514 as:

(1) the appraised value of merchandise;
(2) the classification and rate and amount of duties chargeable;
(3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury;
(4) the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under section 1337 of this title;
(5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof, including the liquidation of an entry, pursuant to either section 1500 of this title or section 1504 of this title;
(6) the refusal to pay a claim for drawback; or
(7) the refusal to reliquidate an entry under subsection (d) of section 1520 of this title;

In its complaint, Acme challenged the collection of antidumping duties on imported day beds from China after it received a  ruling from the Commerce Department that certain of its beds were with the scope of the relevant order. The Court of International Trade noted that Customs' role in the collection of antidumping duties is ministerial, meaning it acts on Commerce's instructions.  Because the scope determination is not a listed protestable event and Customs has made no independent decision with respect to the collection of the duties, the protest was invalid. As a result, the Court found it lacked a basis for jurisdiction to review the issue.

Acme raised a second point (which was actually Count 1). This claim asserted that Customs improperly failed to reliquidate entries of non-scope merchandise pursuant to instructions from Commerce. Here, the Court reviewed the instructions and found that they clearly addressed only unliquidated entries. As a result, the importer was, according to the Court, not entitled to reliquidation of past entries on which it was charged antidumping duties. To the extent Customs did erroneously reliquidate entries to the benefit of Acme, it has no basis to complain. Thus the case was dismissed.

This case reminds me a little of the problem in Canadian Wheat Board. In that case, the whole antidumping duty order was revoked on remand but Commerce instructed Customs to refund duty deposits only from the date of the revocation, not for prior but still unliquidated entries. The Federal Circuit reversed that practice. But, unfortunately, that case did not reach the question of how to treat liquidated entries. Based on the above discussion about liquidations becoming final unless properly challenged, that seems easy to answer.

The second case on protests is Chrysal USA, Inc. I'll get to that one soon.

1 comment:

Sarah said...

It is a little eerily reminiscent of the Wheat Board case, actually. I wonder if it will turn out the same way.