CBP Finds AD Duties Not Refundable for Shrimp Refused Entry by FDA
The antidumping duties paid to CBP related to imported shrimp refused entry by another agency are not refundable to the importer, said CBP in a Jan. 8 ruling. The ruling, HQ H240986, was in response to an internal guidance request on whether AD duties are refundable after an import is blocked by the Food and Drug Administration (FDA) or if there is a court injunction enjoining the entries, said CBP.
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The import in question involves shrimp imported from Vietnam by Trans-Ocean in 2010, said CBP. After the shrimp were entered, released,and AD duties were deposited, the FDA sampled the shrimp and advised that they would be detained due to a finding of salmonella contamination, said CBP. FDA refused entry and the shrimp was exported, although the importer had the option of bringing the shrimp into compliance through FDA's reconditionining process, said CBP. In 2012, "a Post Entry Amendment was filed at the Port of New York/Newark requesting a refund of all duties paid, including antidumping duties," said CBP. Subsequently, the Department of Commerce notified CBP of a preliminary injunction issued by the Court of International Trade enjoining the liquidation of entries that were subject to the antidumping duty order covering the subject shrimp, it said.
The goods are not eligible for refunds because they are restricted goods, rather than prohibited goods, CBP found. The U.S. allows for duty refunds on prohibited goods that were regularly entered in good faith and are subsequently exported or destroyed. But the shrimp could have been lawfully entered under a successful reconditioning proposal, using cooking or segregation for example. CBP has previously ruled that restricted and prohibited merchandise are distinguishable by the ability to alter the good as to be compliant with the law, said the agency. "Because the importer could have taken steps to permit the shrimp to be lawfully entered, the shrimp are restricted goods and not prohibited goods," said CBP. "Therefore, because the shrimp are restricted goods, CBP is prohibited from refunding any duties deposited for this entry. Because we have determined that no refund is permitted, we do not reach the question of whether a refund may be granted when liquidation of the entry is enjoined."