Tire Importer Says CBP Exercised Discretion in Interpreting Liquidation Order From Commerce

A tire importer that alleges that CBP illegally liquidated its entries before the end of litigation regarding those entries opposed, in a May 22 brief, the government’s motion to dismiss its case. The trade court asked the importer to answer whether the court has jurisdiction “to review the denial of a protest if the basis for the denial" is orders by the Commerce Department (see 2405070052) (Acquisition 362 v. U.S., CIT # 24-00011).

Importer Acquisition 362 said in its brief that, in implementing Commerce’s liquidation instruction, “CBP used its discretion and made the particular decision to deny Plaintiff the stay of liquidation.” Therefore CBP “was not merely acting ministerially,” as the government claimed (see 2404180054), it said.

“When CBP received [Commerce’s message], in interpreting Paragraph 2 of the message which applies the SI that ‘enjoins liquidation of entries of PVLT tires from China: (1) that were (a) produced/exported by [Hengyu] or [Boto] and (b) imported by Sutong China Resources’ it applied the law as set forth in the SI to a set of facts, i.e., made a decision,” Acquisition said.

However, the importer did withdraw its claims regarding specific protests that the U.S. had previously argued lacked standing, agreeing that those claims had been untimely because they were made more than 180 days after denial of those protests.

It also withdrew several other claims that were the result of “double-counting,” it said.

“Out of an abundance of caution to ensure that all of the relevant entries were included in the Complaint in this action, it appears Plaintiff inadvertently included (i.e. double-counted) certain protests that were covered by Plaintiff’s surety, Great American Insurance Company,” Acquisition 362 said.