CIT Says Importer Should Have Participated in AD Duty Review to Challenge Assessment Rate

The Court of International Trade on Nov. 12 dismissed an importer’s challenge to the antidumping duty rate it was assessed following completion of an administrative review that covered its Chinese exporter. Intercontinental Chemicals (ICC) should have participated in the administrative review if it wanted to challenge its exporter’s oversight that led to the assessments at a rate of 154.07%, rather than the zero rate the exporter was assigned in the review, CIT said.

ICC had imported xanthan gum from Fufeng, but during the administrative review that covered the relevant period, Fufeng left ICC off a list of importers of its xanthan gum that the exporter submitted to Commerce. Generally, entries that are not reported in the sales databases submitted by exporters to the Commerce Department are assessed antidumping or countervailing duties not at the exporter’s AD/CV duty rate, but at the potentially higher all-others or country-wide rate. Commerce’s subsequent assessment instructions directed CBP to do just that with ICC’s entries.

ICC said those instructions were a mistake and filed suit at CIT under the trade court’s residual Section 1581(i) jurisdiction. That route is only available if there’s no other way to file a CIT challenge, such as a dispute over a denied protest or an AD/CV duty determination by Commerce. CIT usually accepts Section 1581(i) challenges when they pertain to errant Commerce liquidation instructions.

But Commerce’s liquidation instructions in this case were not where the error occurred, CIT said. Instead, the error was made by Fufeng during the administrative review. ICC “argues that the issue is with the liquidation instructions, but these instructions are based-- and not inconsistently -- on the Final Results; the underlying issue is therefore not with the liquidation instructions but with the Final Results,” CIT said.

If it wanted to challenge its assessment rate, ICC could have participated in the administrative review, and commented on the list of sales submitted by Fufeng, CIT said. It could also have challenged the final results themselves, rather than Commerce’s assessment instructions. With that other avenue available, CIT has no jurisdiction to hear the case as a Section 1581(i) challenge to Commerce’s instructions to CBP, the trade court said.