CAFC Says 180-Day Protest Deadline Runs From Liquidation Date, Not Denial of Refund Request

A protest of a CBP decision must be filed within 180 days of liquidation and not the date the Commerce Department issues antidumping and countervailing duty instructions to CBP or the date CBP denies an importer's refund request, the U.S. Court of Appeals for the Federal Circuit held in a Feb. 6 opinion. Upholding a Court of International Trade decision, judges Timothy Dyk, Richard Taranto and Todd Hughes dismissed a case from importer Acquisition 362, doing business as Strategic Import Supply, that challenges a CBP assessment of countervailing duties, on the grounds that the company failed to file a protest.

While SIS argued that it didn't need to file the protest to establish jurisdiction at the Court of International Trade since there was nothing to protest within 180 days of the tire imports at issue being liquidated, the court ruled that a protest was needed nonetheless. However, Dyk, the author of the opinion, did note that the Commerce Department failed to clearly set out policies on the suspension of liquidation in a CVD context.

The trade court dismissed SIS's case in April 2021, finding that the 180-day deadline for protests of CBP decisions runs from the date of liquidation, rather than the date CBP received updated assessment instructions from Commerce (see 2104210066). SIS, an importer of passenger vehicle and light truck tires from China made by Shandong Zhongyi, originally filed the case seeking a lower countervailing duty rate on its entries. In the underlying CVD administrative review, Commerce set a 30.61% duty rate for the subject entries. After uncovering errors in the case, Commerce amended the final results and reduced the rate to 15.56%. Commerce then instructed CBP to liquidate entries at the new rate.

Concurrently, Shandong Zhongyi withdrew from the relevant administrative review of the CVD order, though SIS argued that its foreign manufacturer is the same company as Dongying Zhongyi Rubber Co., which remained subject to the review and received the lower 15.56% rate.

Some relevant entries had already liquidated more than 180 days prior to Commerce's instructions to lower the applicable CVD rate from 30.61% to 15.56%, and so didn't benefit from the change. Nevertheless, the importer filed a protest with CBP, arguing that it was valid because it was filed within 180 days of the instructions. CIT disagreed, finding that a protest was not timely filed since the 180-day deadline runs from the liquidation date. SIS then appealed to the Federal Circuit, arguing it should not have had to file the protest because the U.S. should have provided the necessary refunds for overpaid CVD (see 2203040065).

The appellate court sided with CIT, though it first noted that Commerce's "failure in its orders and initial brief to clearly set out the provisions governing suspension of liquidation ... created confusion that necessitated supplemental briefing to resolve questions that should have been straightforward." The court said that going forward, it expects Commerce to "be both more specific and complete than it was initially about the sequence of government and party actions leading to the challenges presented" in the case.

Dyk initially declared that no statute or regulation authorizes a refund of duties where they have been finally set by liquidation before turning to the question of whether SIS's protests were timely. The importer argued that the protest deadline runs from CBP's decision to deny the refund request and not the liquidation themselves. "This is not so," the opinion said. "In general, duties are finally determined by liquidation. The date of liquidation is the applicable date under § 1514(c)(3) for filing a protest to the rate or amount of those duties. There is no other 'date of the decision as to which protest is made.'"

SIS further claimed that since its foreign manufacturer was still subject to the review, despite the fact that Shandong Zhongyi withdrew, prompting Commerce to issue liquidation instructions over the relevant entries, the liquidation of the imports should have remained suspended. "Since Acquisition had a remedy to challenge the liquidations of its entries within 180 days, the statutory language it cites in an attempt to establish a different timeframe is inapplicable. Acquisition’s protests were untimely, and the CIT lacked jurisdiction under § 1581(a)," the opinion said.

(Acquisition 362, d/b/a Strategic Import Supply v. United States, Fed. Cir. #22-1161, dated 02/06/23, Judges Timothy Dyk, Richard Taranto and Todd Hughes. Attorneys: Heather Marx of Cozen O'Connor for plaintiff-appellant Strategic Import Supply; Hardeep Josan for defendant-appellee U.S. government)