Commerce to Continue Policy of Issuing AD/CV Liquidation Instructions 15 Days After Reviews

Commerce has determined that 15 days is reasonable and appropriately takes into consideration the concerns of CBP and the interested parties. Recognizing the preparation required to determine whether to bring suit at the CIT, 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.

Commerce sets forth the following reasoning, which it states is confirmed by its eight years of experience with this policy, behind why it believes the policy, including the 2006 revisions¹, is both reasonable and workable.

Policy Balances Time for Error Allegations with Time Needed for CBP Process

Commerce has determined that the issuance of liquidation instructions 15 days after publication is reasonable because it balances the factors which it must consider in the effective administration of the AD and CV duty laws.

This policy was first established in recognition of the time in which parties may allege ministerial errors in the final results², as well as in consideration of the fact that entries which are not liquidated within six months of the publication of the final results will be liquidated at the rate asserted at the time of entry. Commerce must provide instructions to CBP quickly in order to provide ample time for CBP to receive and process these instructions and to liquidate applicable entries accordingly.

Allows Gov't to Collect Proper Amount of Duties in Complex Cases

Commerce states that its policy increases the ability of the government to collect the proper amount of duties in every case. In complicated cases where there could be many entries or mixed entries either at one port or several ports, the policy enables CBP to have sufficient opportunity to liquidate at the proper rate or rates.

The policy also takes into account the fact that CBP’s workload periodically precludes entries from being liquidated immediately upon receipt of the instructions, as CBP processes both AD/CVD and normal-consumption entries. Further, in cases involving complex instructions, the remaining time period enables Commerce to respond to CBP inquiries and/or correct any problems so that CBP may act on them before the entries are deemed liquidated. Accordingly, while CBP may not need five and a half months to liquidate entries in every case, Commerce must establish a uniform system to maximize the chances that liquidation will occur at the proper rate in most cases.

Law Provides No Time Limit for Instructions

In addition, Commerce states that while the statute provides deadlines by which parties must file a summons and complaint with the Court of International Trade (CIT), the statute indicates no time limit by which Commerce must issue liquidation instructions³.

Parties Provided Ample Time Through Pre-Released Final Results, Prelim Results

Commerce states that its normal practice is to release the final results of review to interested parties the day after the notice is signed by the Assistant Secretary. This day can be a week, sometimes more, before the final results are published in the Federal Register. In other words, while parties have 15 days after the publication of the final results before Commerce will issue liquidation instructions, they have usually had at least 22 days to read and review the final results before Commerce has issued liquidation instructions.

In addition, the preliminary results of administrative review are released and published well in advance of the release and publication of the final results, and the parties are provided the opportunity to comment on the preliminary results during that period of time⁴. The parties are thus aware of the issues which they may be interested in litigating well before the final results are released, much less published in the Federal Register.

¹In August 2002, Commerce announced on its website its policy of issuing liquidation instructions within 15 days of the publication of the final results of review. Beginning in November 2006, Commerce began announcing in the final results of reviews that it intends to issue liquidation instructions 15 days after publication of the final results.

²Commerce’s regulations provide that an interested party must file comments concerning ministerial errors within five days after the earlier of the date on which Commerce releases disclosure documents to that party, or Commerce holds a disclosure meeting with that party. The regulations also provide that Commerce will disclose its calculations normally within five days after the date of any public announcement or, if there is no public announcement, within five days after the date of publication of the final results.

³The regulations at 19 USC 1516a(a)(2) state that interested parties wishing to contest the final results of administrative review have thirty days after the publication of the final results to file a summons, and 30 days after that to file a complaint, with the CIT.

⁴The regulations at 19 USC 1675(a)(3)(A) state that Commerce must make a final determination in an administrative review 120 days after the publication of the preliminary results and allowing for extensions up to 180 days. 19 CFR 351.309(c)(1)(ii) provides interested parties the opportunity to comment on the preliminary results of an administrative review.

(See ITT's Online Archives or 06/04/10 news, 10060419, for BP summary of a CIT opinion reiterating that ITA’s 15-day liquidation instructions interval is “unlawful.”)