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US Can't Escape Congress' Intent in Bid to Not Distribute Delinquency Interest, Appellants Say

The U.S. cannot escape Congress' plain meaning in requiring CBP to distribute interest assessed after liquidation, known as delinquency interest, under the Continued Dumping and Subsidy Offset Act, "no matter how many new arguments DOJ throws into its brief on appeal," appellants led by Hilex Poly Co. argued in a reply brief at the U.S. Court of Appeals for the Federal Circuit. DOJ tries to "rewrite history," seeing as its interpretation "flies in the face of the statute's command to distribute 'all interest,'" the brief said (Hilex Poly Co. v. United States, Fed. Cir. # 22-2106).

Hilex Poly said DOJ tries to also "rewrite the statute," reading the word "all" out of the text. While DOJ said that Hilex Poly elevates the word "all" above all other textual language, the company gives appropriate meaning to all of the stattue's words and "reads the subsections in order, which honors basic statutory canons of construction."

DOJ said that "all" actually means "all 1677(g)" interest, though the government concedes that CBP will not actuallly even distribute all of this interest in certain cases. "Apparently, DOJ's made-for-litigation reading does not even accord with Customs's practice," the brief said. Hilex Poly added that CBP is "due no deference" in this case since it made a post-hoc justification of the decision not to distribute the delinquent interest, claiming it was due to a technological limitation.

Hilex Poly said the record "unequivocally refutes this revisionist history" advocated by DOJ, which says the public was on notice of the agency's decision to impound delinquency interest. CBP failed to declare it was not distributing this interest for 15 years, changing course in 2016, the brief said. "If Customs’s prior position on delinquency interest was clear, no such change would have been necessary," it said. "Customs also did not communicate its intent to withhold delinquency interest via its rulemaking. Congress did not know what Customs was doing -- and certainly did not approve."

Sen. John Thune, R-S.D., even issued a statement admonishing the agency for the purported reversal. "Customs has no answer to this stinging congressional rebuke," the brief said.

Hilex Poly filed the case to argue that the text of the CDSOA as enacted by Congress expressly requires CBP to distribute all interest linked with antidumping and countervailing duties to affected domestic producers under CDSOA. The Court of International Trade ruled that CBP properly denied these payouts, finding that it must rely on CBP's interpretation, given some ambiguities in the statute pertaining to delinquency interest (see 2206160074).