The trade court distinguished situations when the scope of the ADD and CVD orders is in question versus when the importer claims that CBP made a mistake in applying the orders.
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In 2008, the Department of Commerce issued a notice of antidumping duty (ADD) order and a notice of countervailing duty (CVD) order concerning circular welded carbon quality steel pipe from China. The ADD and CVD orders specifically excluded “finished electrical conduit.”
The importer in this case, in July 2010, imported a single entry of merchandise, described as electrical rigid metal conduit steel—a type of rigid steel conduit product—and classified under HTSUS 7306.30.50.25, as “duty free” and without reference to the ADD and CVD orders. The importer believed the merchandise was specifically excluded from the scope of the orders as “finished electrical conduit.”
In January 2012, CBP liquidated the entry. In February 2012, the importer filed a scope inquiry with Commece. In April, the importer filed a timely protest with CBP, and the protest was denied in May 2012. In July 2012, Commerce issued its scope ruling, finding that the merchandise was excluded from the scope of the ADD and CVD orders.
The importer claimed that CBP made a mistake in not determining that the merchandise was not excluded from the ADD and CVD orders. It also claimed that this mistake was a “protestable decision.”
The government moved to dismiss the complaint, asserting that the importer must seek review of the scope ruling from Commerce that the merchandise was excluded from the orders (which did not happen in this case) in lieu of filing a protest as required for the trade court to have jurisdiction.
The trade court, however, denied the government’s motion to dismiss, finding instead that CBP’s determination that the merchandise was not excluded from the scope of the orders was a “protestable decision” of the type specified in section 1514(a)(2).
For more information, contact a professional with KPMG’s Trade & Customs practice:
John L. McLoughlin
Todd R. Smith
Luis A. Abad
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