Importer Says It Couldn’t Have Known to Follow Criteria of Unpublished Revocation Order

An importer whose products weren’t covered by the revocation of an antidumping duty order -- because the importer filed its end-use certifications with post-summary corrections instead of at entry -- argued in the trade court May 1 it couldn’t have fulfilled the requirements of the underlying changed circumstances review because they hadn’t been released yet (Kiswire Inc. v. U.S., CIT Consol. # 22-00181).

In 2018, importer Kiswire entered three shipments of high carbon steel wire rod from South Korea at a 41.1% AD rate. At the time, end-use certifications weren’t required, it said. But the following year, when it partly revoked that AD order after a changed circumstances review, the Commerce Department said that the revocation only applied to goods whose end-use certificates were filed at the time of entry summary; so Kiswire immediately filed post-summary corrections to provide CBP its products’ end-use certificates, it said.

In 2020, CBP suspended Kiswire’s entries. In 2021, the suspension was lifted, and six months later the three entries seemed to have been deemed liquidated at the 41.1% rate, Kiswire said. But the agency then denied Kiswire’s subsequent protests for untimeliness, saying that the entries had actually liquidated in 2019 -- even though “Customs personnel informed Kiswire, on at least four subsequent occasions [between 2020 and 2021], that the subject entries remained suspended,” the importer said in a Jan. 5 motion for summary judgment (see 2401080040).

In a March 25 cross-motion for judgment (see 2403270040), the U.S. posed two theories of the case: First, they argued that the importer’s goods were not subject to the revocation because end-use certifications hadn’t been filed at entry. Second, if the court did find that Kiswire’s shipments were covered, they would have automatically been deemed liquidated six months after the revocation at the rate they were entered, 41.1%.

Kiswire disagreed with both in its reply May 1.

Its entries were covered under the revocation order because CBP’s “own public guidance and practice” hold that post-summary corrections “operate to revise and replace the original entry summaries,” it said. Further, it explained, the agency did liquidate several other of Kiswire’s “identically situated” entries during the period by relying on end-use certifications it had filed in post-summary corrections.

CBP even recognized that the issue would arise during the changed circumstances review that led to the revocation, Kiswire said, and recommended to Commerce that importers be required only to hold on to their end-use certifications in case the government needed them later.

The agency’s alternative argument also didn't make sense, it said. Its entries couldn't have been liquidated until September 2021 because there never had been any “public and unambiguous notice” before that point that the suspension had been lifted.

“To now accept Customs’ alternative argument that the entries nevertheless deemed liquidated in October of 2019 would reward Customs for repeatedly misinforming Kiswire of the suspension status of these entries,” the importer said. “This would fly in the face of the deemed liquidation statute’s ‘primary purpose,’ which is to increase certainty in the customs process for importers.”