CBP Didn't Prematurely Suspend Liquidation of Entries Prior to EAPA Case, Agency Says

CBP didn't prematurely suspend liquidation of two entries prior to the beginning of an Enforce and Protect Act investigation, the agency said in a newly released ruling. The ruling, dated Jan. 3, denied a protest from Crude Chem Technology, which had argued that CBP was required by law to extend liquidation on the entries, not suspend it.

"CBP independently determined that these entries were subject to the [antidumping duty] order and suspended liquidation of both entries as required by statute, notwithstanding the EAPA investigation which began shortly thereafter," the agency said. In any case, the goods would have liquidated per Commerce Department instructions at an AD rate of 154.07%, regardless of whether they were suspended or extended, it said. If extended, CBP would have "merely liquidated the entries per the instructions at a later date."

Crude Chem filed the protest in April 2020, saying that CBP is required by the EAPA statute and regulations to extend liquidation when it begins an EAPA investigation for entries prior to the investigation's start date.

It said CBP should have extended liquidation for two unliquidated entries in early 2019 that were entered before the date an EAPA investigation of Crude Chem began, the agency said. The entries were suspended in February and April 2019. CBP began its EAPA investigation in May 2019, and would go on to make a final determination of evasion in March 2020. The two entries had already been liquidated in September 2019.

CBP did agree that the law requires it to extend -- not suspend -- liquidation for entries prior to the initiation of an EAPA investigation. However, CBP also was instructed by Commerce's original AD order in 2013 to suspend liquidation of entries of xanthan gum from China, the agency said. CBP made the determination that the two entries were subject to the order from Commerce and suspended the entries before the EAPA investigation began, the agency said. This suspension was done properly and was separate from the EAPA investigation, it said.

The law that defines EAPA investigations and how they work, 19 U.S.C. § 1517(e), is also silent on how CBP should treat entries that were already suspended, the agency said. Therefore, CBP liquidated the entries correctly, the agency said.

CBP was instructed by Commerce to liquidate entries from China that were entered between July 2018 and June 2019 at the “cash deposit rate” in effect for the date of entry. Crude Chem also didn't give any reason why these instructions wouldn't apply to its entries. Therefore, the message from Commerce did apply to Crude Chem and CBP acted within its authority to liquidate the entries.

The EAPA final determination found substantial evidence that Crude Chem Technology and other companies evaded antidumping duties on xanthan gum from China by claiming the entries were of Indian origin (see 2004210051).

Crude Chem Technology didn't respond to our request for comment.