CIT Says 180-Day Protest Deadline Runs From Liquidation, Not AD/CVD Instructions
The Court of International Trade's newest judge, Stephen Vaden, issued his first opinion with the court on April 21, dismissing tire importer Strategic Import Supply's challenge of CBP's assessment of countervailing duties on its imports of passenger vehicle and light truck tires from China. Vaden found that the importer's protest was filed too late, holding the 180-day deadline for protests runs from the date of liquidation, rather than the date CBP received updated assessment instructions from Commerce after Commerce amended rates set in the relevant CV duty administrative review.
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Strategic Import Supply brought in shipments of tires in 2016 that were subject to a 30.61% countervailing duty rate set in the final results of an administrative review. Commerce then amended those final results after discovering errors, chopping the rate in half to 15.56%. Commerce then instructed CBP to liquidate relevant entries at the new rate. Though its entries had already liquidated more than 180 days prior, Strategic Import Supply filed a protest with CBP, arguing that its protest was valid since it was filed within 180 days of Commerce's instructions to CBP to liquidate the relevant entries at the lower rate.
Vaden didn't buy the argument, finding that the plaintiff's protest was challenging a Commerce decision, not a Customs one. “This Court has held, and the Federal Circuit has affirmed, that determinations of countervailing duty and antidumping duty rates are not Customs decisions but rather Commerce decisions,” the judge explained. Thus, the plaintiff's case should have been filed under 1581(c) and not 1581(a) as was originally filed. Basing the timeliness of the protest on the date CBP liquidated the plaintiff's imports, there is no dispute that the protest was untimely. “Were Plaintiff’s protests permissible, they would be untimely and thus deprive the Court of jurisdiction,” Vaden wrote. “Either reason is sufficient to require dismissal.”