US Opposes Exporters' Bid to Compel Refunds of CVD Cash Deposits
The U.S. opposed Canadian lumber exporters' bid to get the court to clarify its instruction to CBP to "discontinue ... the collection of" cash deposits made on entries brought in before a prior Court of International Trade decision, which said it wasn't equitable to subject the companies' exports to the countervailing duty order on Canadian softwood lumber (Committee Overseeing Action for Lumber International Trade Investigations or Negotiations v. United States, CIT # 19-00122).
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The government said the exporters failed to identify an authority that "compels pre-liquidation partial refunds of cash deposits," adding that the claim "amounts to an un-administrable requirement that" CBP "retroactively refund cash deposits in response to interlocutory decisions." The trade court should reject the attempted "end-run around" the trade court's decision and the "clear and unambiguous rule that liquidation is the final assessment of all duties, taxes, and fees," the brief said.
Most recently, CIT remanded Commerce's expedited CVD review on the exporters for Commerce to review its decision not to attribute subsidies received by lumber suppliers to respondents (see 2404230031). The case had returned to CIT after the U.S. Court of Appeals for the Federal Circuit reversed the trade court's finding that expedited CVD reviews aren't allowed under U.S. law (see 2304250061).
After the CAFC decision, CIT said it wasn't equitable to subject exporters who were originally excluded from the CVD order in the expedited review to "the consequences" of the order. The trade court told the U.S. to stop collecting CVD cash deposits on shipments made on or after Aug. 28, 2021. The excluded companies said the U.S. continued to withhold the cash deposits, prompting the firms to ask the court to revise the language of the order accompanying its decision to clarify the government's obligation to refund the deposits (see 2411190038).
In response, the U.S. said there "was no clerical error" warranting a change to the court's previous decision. The government said the "intent of the parties was clear" in that Commerce would tell CBP to liquidate all suspended entries of lumber made and exported by the excluded companies without the duties. As a result, the companies would get refunds "at the time of liquidation."
Commerce is only allowed to tell CBP to liquidate entries in line with its administrative decisions or court decisions, the U.S. said. Nothing in the laws governing AD/CVD "even envisions the type of refunds that the" exporters seek, the government argued. Informed importers should know that liquidation means the "final computation or ascertainment of duties on entries for consumption or drawback entries," and, as the companies concede, there can be no "final computation" until two pending binational panel proceedings under the USMCA wrap up.
Instead, the court's decision "merely directs that Commerce treat subject entries the same as it would for any matter where there are parallel antidumping and countervailing duty proceedings," the brief said.
The U.S. added that the relevant statutes don't allow for the relief sought by the exporters. By allowing but never requiring CBP to issue refunds prior to liquidation, "Congress left it to CBP’s discretion to decide whether preliquidation refunds" may be administrable in specific cases. Here, CBP said it doesn't "have the resources to spare to process manual preliquidation refunds for the thousands of affected entries," ending the issue, the government argued.