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Raising Constitutional Claims Before Commerce Against AFA Rates 'Futile,' Importer Tells CAFC

The Court of International Trade erred in finding that importer Rimco was required to raise its claims that antidumping and countervailing duty rates violated the U.S. Constitution's Eighth Amendment regarding excessive fines before the Commerce Department administratively, Rimco told the U.S. Court of Appeals for the Federal Circuit in a March 8 reply brief (Rimco v. United States, Fed. Cir. # 22-2079).

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Since Congress passed the Trade Preferences Expansion Act of 2015, Commerce’s AFA rate determinations are "immune from attack by interested parties before that agency, as well as from direct judicial review," Rimco said. But even if they were reviewable, Commerce first used AFA in its final determination, after which Rimco was unable to make its claims, Rimco said.

Rimco is challenging the 231.70% China-wide AD rate and 451.10% CVD rate Commerce set on its steel wheel imports. The Court of International Trade dismissed the case for lack of jurisdiction, holding that it can't hear the case under Section 1581(a) since CBP's liquidation of the entries was not a protestable decision (see 2207110032).

The Federal Circuit should reverse the trade court's decision, however, because a protest challenges the liquidation of an entry "including the legality of all orders and findings entering into the same," the importer said, citing 19 U.S.C. 1514(a). "Orders," as they're defined here, include the liquidation instructions that CBP carried out, the brief said.

The TPEA also "removed challenges to application of AFA rates" from the Commerce decisions listed in the statute as non-protestable. Since the law was enacted "a challenge to an AFA rate is not a challenge which 19 U.S.C. § 1514(b) prohibits from being raised by protest," Rimco said.

And the Federal Circuit's holding in Swisher Int'l v. U.S. said that constitutional challenges to CBP's "exaction of monies" can be challenged via protest, Rimco said. The importer added that if jurisdiction doesn't exist under Section 1581(a), it should exist under Section 1581(i), the trade court's "residual" jurisdiction.

Rimco said an objection before Commerce would have been futile because the agency "lacks the ability to judge the constitutionality of its own determinations." The company added that "as an importer Rimco could not contribute to an annual reviews to assist Commerce in calculating the margin of dumping or of countervailable subsides from a foreign country. Commerce looks solely to foreign manufacturers and exporters for such data, which must be submitted to the agency under a certification of accuracy. ... As such, any attempt by Rimco to obtain a determination from Commerce that the rates at issue were a violation of the Eight[h] Amendment would have been futile ab initio."