UNITED STATES COURT OF INTERNATIONAL TRADE

Slip Op. 24-84

Before the Court in Acquisition 362, LLC. d.b.a. Strategic Import Supply, LLC v. United States, Court No. 24-00011, Slip Op. 24-84 (July 23, 2024) was plaintiff’s challenge to the liquidation of entries covered by injunctions relating to certain passenger vehicle and light truck tires relevant to the consolidated case YC Rubber Co. (N. Am.) LLC v. United States, Consol. Ct. No. 19-00069, of which plaintiff was not a part. Acquisition 362, an American importer of certain tires from Shandong Hengyu Science & Technology Co. Ltd. (“Hengyu”) and Shandong Wanda Boto Tyre Co. Ltd., invoked the Court of International Trade’s jurisdiction pursuant to 28 U.S.C. § 1581(a) and the court dismissed this challenge for lack of subject-matter jurisdiction.

The challenge came after Customs and Border Protection denied plaintiff’s protests against the liquidation of certain tires based on instructions from the Department of Commerce given in 2019 to reflect the court’s order to enjoin liquidation of similar entries in the consolidated case YC Rubber v. United States. Customs liquidated entries imported by Acquisition 362 according to an assigned rate of 64.57 percent which Commerce assigned following its second administrative review and final determination of the antidumping order on Certain Tires from China for the period of review (“POR”) August 1, 2016 through July 31, 2017. In YC Rubber various parties challenged Commerce’s Final Results as they applied to their entries during the POR. Specifically, for plaintiffs that were exporters, the injunctions covered all entries of Certain Tires during the POR by that exporter. For plaintiffs that were importers, the injunctions covered entries of Certain Tires by that importer during the POR from specified exporters. In May 2019, one of the parties to the consolidated case YC Rubber obtained an injunction against the liquidation for its entries exported from Hengyu, Wanda Boto, and Shandong Linglong Tyre Co., Ltd. in June 2019, another party obtained an injunction against liquidation for its entries exported from Wanda Boto. However, neither Hengyu nor Wanda Boto were parties to YC Rubber, no injunction issued with respect to all entries from either company, and Acquisition 362 was not an importer named in any injunction issued by the Court resulting from the YC Rubber case. Thus, as applied to plaintiff’s entries, the instructions that influenced Custom’s denial of Acquisition 362’s protests were consistent with the terms of the injunctions. The instructions indicated that the liquidation of entries from Hengyu and Wanda Boto must remain suspended. Commerce sent additional instructions based on other injunctions in the litigation, including an injunction covering entries from Wanda Boto. However, none identified Acquisition 362’s entries from Hengyu and Wanda Boto.

The government argued that the Court lacked subject-matter jurisdiction as to six protests; two because Acquisition 362 commended the action after the 180-day statute of limitations expired and four because the government said Acquisition 362 was not the protestant. As to the remaining protests, the government argued that plaintiff failed to state a claim for which relief could be granted because Customs properly liquidated the entries according to Commerce’s instructions since because of Customs’ ministerial role in liquidating antidumping duties. In its response, Acquisition 362 conceded that the court lacked jurisdiction as to the six aforementioned protests. As to the remaining protests, plaintiff contended that Customs’ actions were not ministerial and should be scrutinized because the agency exercised discretionary authority when it declined to apply the statutory injunction to plaintiff’s entries. Plaintiff argued that the exercise of discretion is sufficient to state a claim for relief.

The court agreed with the government, holding that Customs did not make a protestable decision when it followed Commerce’s liquidation instructions issued in May 2019, which were superseded by Commerce’s instructions communicating the Court’s injunction against liquidation. The court found that plaintiff’s argument that Customs was empowered to expand the court-issued statutory injunction or Commerce’s instructions beyond their respective terms lacked legal support. The Court noted that plaintiff did not join the YC Rubber litigation, did not seek an injunction from the Court, and was not included in or covered by any other party’s injunction. Furthermore, the Court reasoned that Commerce’s publication of the Final Results acted as notice to Customs that the suspension of liquidation in effect during the administrative review had been lifted and no legal action existed after that to suspend the liquidation as to entries imported by Acquisition 362. As to Customs’ failure to liquidate the entries within six months after receiving notice of the lifting of suspension, the Court noted that “any gratuitous withholding of liquidation of those entries by Customs could not have caused Customs to lose the ability to liquidate those entries at the correct assessment rate.” Acquisition 362, LLC. d.b.a. Strategic Import Supply, LLC v. United States at 9.