CBP Ruling Rejects Protest 'Supplement' but Says It Can Be Considered as New Protest
A protest supplement filed by an importer may not be considered by CBP as a supplement but should be accepted as a new protest, CBP said in a recent ruling. Though the supplement was too late because it came after the relevant protest was denied and addressed an issue not included under the original protest, the supplement otherwise met all requirements for protests filed by CBP, the agency said.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
The ruling, HQ H298167, posted Nov. 18 to CBP’s CROSS database, was issued by the agency Sept. 16 pursuant to a request for further review filed by the importer, Mercury Products. Mercury had entered circular welded pipe from China as type 01 in 2016, but CBP changed the entry to type 03, subject to antidumping duties, in August 2017. The agency liquidated the entry and assessed AD duties in January 2018.
On March 2, 2018, Mercury protested the assessment of AD duties, including interest. It said the pipe was produced to the ASTM A-513 standard and qualified as mechanical pipe exempt from circular welded pipe duties.
Days later, on March 9, CBP reliquidated the entry to assess countervailing duties, and issued a second bill. Then, in April, CBP “mistakenly” reliquidated the entry again and refunded the AD duties collected on the entry, sans interest. CBP then denied Mercury’s protest in May, noting that the AD duties had already been refunded. In July 2018, Mercury attempted to amend its original protest to dispute the assessment of CV duties, and request a refund on the interest paid on its AD duty cash deposit.
CBP headquarters found the agency could not consider the ruling amendment as a supplement. The agency’s regulations say amendments to protests must be submitted prior to the protest being decided, and Mercury’s supplement came two months after CBP denied the protest. The supplement also partly addressed the assessment of CV duties, which was not raised in Mercury’s initial protest, and the Federal Circuit has held supplemental claims must challenge the same decisions as those challenged in the original protest.
“It was not until March 9, 2018, a week after the original protest was filed, that CBP assessed CVD; thus, this reliquidation is a separate ‘decision’ by CBP under the law,” the agency said.
However, CBP said the supplement met all the requirements of a full protest, and said it would consider it as a separate protest. The supplement was filed in ACE and clearly labeled as a protest, in line with the conditions CBP’s protest statute at 19 USC 1514, the agency said. “Additionally, the Supreme Court has held that technical precision is not required of a protest, as long as objections are distinct, specific, and sufficient to bring to CBP’s attention the importer’s intent and relief sought,” it said.
While only one protest is allowed per entry, unless the entry covers multiple categories of merchandise, “in this instance the original protest filed by MPC was based on one liquidation, whereas the subsequent submission is in protest of a second and separate liquidation of the same entry,” CBP said. “If not allowed to protest this new liquidation, which occurred subsequent to submission of the original protest, MPC would be denied any administrative avenue for relief, which we find is contrary to the intent of 19 U.S.C. § 1514.”
Nonetheless, CBP denied the protest. Mercury cited language from the scope of the antidumping duty order on circular welded pipe from Mexico, which excluded mechanical tubing based on the International Trade Commission's partial negative injury determination. The AD/CV duty orders on circular welded pipe from China contain no express exclusion, and given that ambiguity it is beyond CBP’s authority to determine whether the pipe is covered by the AD/CV duty orders, CBP said.
And because Mercury again protested the entry’s liquidation, CBP is still free to reliquidate the entry. That means CBP can also go back and fix its mistaken refund and reliquidate the entry to collect AD duties, the ruling said.
“If MPC continues to believe that CBP has erred as a matter of fact, it must seek a scope ruling request from Commerce to determine whether the specific pipes at issue are outside of the scope of the ADD and CVD Orders,” the ruling said.