Thursday, November 11, 2010

What Congress Giveth, Commerce Can Taketh Away?

The US Department of Commerce (DOC) announced this week that it will continue to issue liquidation instructions to US Customs and Border Protection (CBP) 15 days after publication in the Federal Register of final results of antidumping and/or countervailing duty administrative reviews.  DOC's announcement is available here.  Not exactly riveting stuff but still important because it affects whether DOC decisions are subject to judicial review.

The US Court of International Trade has previously ruled that DOC's so-called 15-day policy is contrary to law because:   
the record does not disclose any consideration of the need for an orderly administration of the statutory scheme for judicial review or the need for Commerce to achieve its regulatory objectives without imposing the unnecessary costs and burdens on affected parties that result from the Department's policy, rule, or practice.
This week's announcement appears to be DOC's attempt to sort of address those concerns.  DOC took a second look at its existing policy and determined that it was reasonable (who needs judicial review when an agency can determine the reasonableness of its own decisions?):
Commerce has determined that the issuance of liquidation instructions 15 days after publication is reasonable because it balances the factors which Commerce must consider in the effective administration of the antidumping and countervailing duty laws. 
These factors include:  (1) taking into account the time for alleging ministerial errors, (2) the amount of time CBP needs to liquidate the covered entries, and (3) ensuring the US Treasury receives the correct amount of duties.

DOC did not address the first consideration identified by the court - "an orderly administration of the statutory scheme for judicial review."  The court's concern is that the 15-day policy short-circuits the statutory scheme that allows parties 30 days to file a summons and then another 30 days to file a complaint (followed by an additional period to move for a preliminary injunction that enjoins liquidation of the covered entries).  Instead of grappling with the competing interests, DOC says while the 15-day policy is reasonable, 
Commerce will continue not to issue liquidation instructions if a party provides the Department of Justice with a draft summons, complaint, and motion for preliminary injunction prior to Day 15.
Translation - hey trade bar, Congress may have given you 60 days to file a summons and complaint, but that doesn't mean we have to.

Look, I get that there are competing interests here -- DOC's concern that CBP only has 6 months from publication of the final results to liquidate the entries or they are deemed liquidated at the cash deposit rate claimed at the time of importation v. parties having the full amount of time granted by Congress to decide whether to appeal (by filing the summons) and how to frame the issues (by filing the complaint) -- and that DOC is trying to find a middle ground by saying "we won't issue the instructions if you give our lawyers a draft."  Still, strictly from a separation of powers perspective, it does not seem correct that an administrative agency can effectively shorten the time granted by Congress to seek judicial review.

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