CBP's Role in 24-Year Liquidation Delay Not Protestable, Agency Says

A multi-decade delay to the CBP liquidation of two entries that were subject to antidumping duties was not a constitutional violation by the agency, CBP said in an Aug. 5 ruling. Mowry & Grimson requested the agency further review a protest to consider whether the delay illegally neglected the Constitution's due process clause. The ruling, HQ H233640, also considered whether the importer, M & G Industries, presented certificates of non-reimbursement in time. Although some of the arguments raised have been previously addressed, CBP said "there are facts and legal arguments that have not been the subject of a Headquarters ruling or court decision."

M&G filed two entries of steel wire rope from Japan in 1982 and the Commerce Department released its final results of an antidumping administrative review for Japanese steel wire rope in 1984, said CBP. It wasn't until 2011 that Commerce instructed CBP to liquidate any remaining entries of the steel wire rope entered within Feb. 1, 1982 through Sept. 30, 1984, a timeframe that included M&G's entries. CBP liquidated the entries as instructed, and also doubled the antidumping duties "because it did not receive the requisite certificates of non-reimbursement," it said.

The company argued "that the 24-year delay in liquidation of the two entries was unreasonable and violates the due process clause of the U.S. Constitution" and "owes no duties on these entries as a result of the delay." As the courts and CBP have previously said, the agency's role is ministerial and it simply follows liquidation instructions from Commerce, said CBP. In this case, CBP liquidated the entries within a "few months" of receiving the instructions from Commerce, meaning the delay was neither "unreasonable" nor a violation of due process, it said.

The company's complaint that Commerce's delay was unreasonable is not something that can be protested at CBP, it said. The regulations only allow for CBP decisions to be protestable at the agency. The company also asked that CBP reliquidate the entries because it has provided the certificates of non-reimbursement with its protest. Mowry & Grimson "presented certificates of non-reimbursement with its protest indicating that it was not reimbursed by the manufacturer, producer, seller or export for the duties assessed upon importation," said CBP. Because CBP may accept a non-reimbursement certificate with a timely filed protest, the company "has sufficiently rebutted the presumption of reimbursement" and that portion of the protest should be granted, the agency found.