Protestable Entries Still 'Unliquidated' for AD Duty Purposes, CAFC Says

Instructions not to assess antidumping duties on “unliquidated” entries also apply to entries that have been liquidated but not finalized because they are still protestable, the U.S. Court of Appeals for the Federal Circuit said in a March 30 decision. Overturning a Court of International Trade ruling from 2016 (see 1610250042), the Federal Circuit held that the Commerce Department’s revocation of antidumping duties on German steel may apply to several of ThyssenKrupp’s entries that had already been liquidated by the time the revocation was announced.

CBP had argued, and CIT agreed, that the entries were not protestable because CBP was only taking a ministerial role in applying Commerce’s liquidation instructions. The Federal Circuit, on the other hand, said CBP made a protestable decision when it ruled entries that were “unliquidated” means never liquidated, rather than that liquidation hasn’t been finalized.

The case involved several entries of corrosion-resistant steel products imported by ThyssenKrupp in 2012. At the time of entry the merchandise had been subject to an AD duty order on the product. Commerce had ordered the entries liquidated at the 10.02% AD duty rate in effect at the time of entry in October 2012. But in April 2013, Commerce announced that the AD duty order was being revoked in the context of the sunset review, and that revocation would take effect for unliquidated entries on or after Feb. 14, 2012. All of ThyssenKrupp’s entries had come in after that date.

ThyssenKrupp protested the earlier liquidations, and CBP took the ruling up to headquarters before it rendered its final decision rejecting the protests as unprotestable because the agency was only following Commerce’s instructions. ThyssenKrupp filed suit at CIT. The lower court ruled that it did not have jurisdiction to consider the denied protest because CBP’s liquidation actions “were purely ministerial and therefore not ‘decisions of the Customs Service’ subject to protest.”

The Federal Circuit disagreed. Commerce’s instructions on the revocation of duties did not define “unliquidated entries,” and that term “does not have the plain, unambiguous meaning that the government urges,” the Federal Circuit said. “To the contrary, the better view of that language is ThyssenKrupp’s position.” Under the customs laws, “an initial liquidation in which an underlying Customs decision is under protest is not ‘final and conclusive,’” it said. As ThyssenKrupp’s entries were still protestable at the time Commerce issued its instructions, the computation of duties had not been finalized.

CBP’s interpretation also does not “make sense in terms of the basic policy,” the Federal Circuit said. “Commerce has determined that entries made on or after the revocation date do not warrant antidumping duties, yet the government’s view would apply such duties to those entries,” it said. “We do not question such a result where ordinary direct review mechanisms are no longer open,” but here the entries are still protestable, the Federal Circuit said. The appeals court vacated the lower court ruling and sent the case back down to CIT “for consideration of the merits of ThyssenKrupp’s claim in accordance with our decision that the entries in question were ‘unliquidated’ within the meaning of the April 4, 2013 instructions implementing the results of the sunset review.”

(ThyssenKrupp Steel North America v. U.S., CAFC # 17-1407, dated 03/30/18, Judges Lourie, Dyk and Taranto)