CIT Finds Entries Deemed Liquidated, Says CBP's 'Ministerial Role' Must Include Comprehension of Clear Instructions

Six entries of stainless steel plate in coils (SSPC) imported in 1999 from Belgium that were subject to antidumping and countervailing duty orders were deemed liquidated by operation of law, Court of International Trade Judge Kenton Musgrave said in a Dec. 21 ruling. The importer, Arbed Americas, LLC, sued CBP over the 2011 liquidation of the entries. Those entries were caught up in a separate lawsuit that resulted in the U.S. Court of Appeals for the Federal Circuit suspending liquidation of all entries of SSPC from Belgium and remanding a denied preliminary injunction back to CIT.

CIT eventually responded with a 2006 injunction of its own preventing liquidation of 21 entries of SSPC that didn't include Arbed's. Arbed argued that the duty rates paid at entry were the proper rates, after CBP liquidated the entries in 2011 with an AD rate of 24.43% and a CVD rate of 0.97%. Arbed's protest said that the entries "were deemed liquidated six months after August 31, 2006." That's the date that CBP received a Commerce Department message about the litigation on the SSPC entries. CBP denied the protest, saying that due to its "ministerial role," it was unable to liquidate the entries in 2006 until receiving further notice.

CBP's denied protest said that because neither the CIT injunction nor the Commerce message includes instructions to liquidate any entries nor "reference the Federal Circuit case, its outcome, or the ending of its stay of liquidation,” the agency couldn't act. But "such contentions, however, essentially repeat arguments already advanced by the government that the court and the Federal Circuit have considered and rejected," Musgrave said. Past rulings on CBP's purely "ministerial role" in liquidating entries "does not mean Customs is without the capacity to comprehend clear notice from Commerce or relevant judicial orders," CIT said.

While the government argued that Commerce's instructions weren't sufficiently clear and the only "'unambiguous and public' notice to Customs that the suspension of liquidation for the entries at issue was removed occurred in 2010," a "valid notice" can also come from a court with jurisdiction, CIT said. "This court has such jurisdiction, and the Clerk of this Court certified that on August 29, 2006 it served this court’s Order," it said. That order "plainly limited the continuing injunction on liquidation to the 211 listed entries, and it just as plainly excluded Arbed’s six entries from that injunction by implication." Although Arbed argued that the entries were deemed liquidated six months after Aug. 31, 2006, the relevant date is actually six months after expiration of the 90-day period allowed for requesting a Supreme Court review of the Federal Circuit decision.

(Arbed Americas, LLC. v. U.S., Slip Op. 18-177, CIT # 15-00095, dated 12/21/18, Judge Musgrave)