Importer Moves for Reconsideration of Customs Case Due to CBP Granting Identical Protest

Importer Strategic Import Supply wants a reconsideration of its case in the Court of International Trade, seeing that CBP granted a nearly identical protest to the one that was the subject of dismissal in an April 21 opinion. In a May 19 motion for reconsideration, Strategic Import Supply argued that CBP's recent decision to assess a lower countervailing duty rate on imports of passenger vehicle and light truck tires from China is new evidence that the underlying protests in the CIT case were timely filed and that CBP acted in an "arbitrary and capricious manner" (Acquisition 362, LLC v. United States, CIT #20-03762).

Judge Stephen Vaden originally dismissed the case after finding that the 180-day protest deadline for entries runs from the date of liquidation, not the antidumping/countervailing duty instructions from the Commerce Department (see 2104210066). 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, cutting the rate in half to 15.56%, and 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.

Strategic Import Supply is now hoping CBP's more recent decision to assess the lower CVD rate, which came a week after the opinion, will be enough to prove that the protests were in fact timely filed. In addition, the importer argues that the Code of Federal Regulations says that protests can be made within 180 days relating to an entry made from the notice of liquidation or reliquidation or "the date of the decision, involving neither a liquidation nor reliquidation, as to which the protest is made." The only difference in the recent protest and the protest in the CIT case is that CBP chose not to liquidate the more recent entry until a later date than from the protest at issue in the court, the importer said.

Strategic Import Supply also says CBP acted in a manner that would give CIT jurisdiction to hear the case regardless of the denied protest, under 19 USC 1581(i). "The mere fact that the same merchandise that entered on or around the same date, from the same manufacturer to the same importer, and regarding which Plaintiff has presented identical arguments for assessment of the proper CVD rate are actually subject to different CVD rates is unjust and illustrates the arbitrary and capricious actions of the CBP in reviewing these protests," the plaintiff said.