Domestic Producers Seek Payouts of Delinquency Interest Under CDSOA for Many ADD Orders
Domestic manufacturers and producers of a wide range of goods covered by antidumping duty orders filed motions for judgment May 24 seeking court orders that CBP distribute delinquency interest that they say should be paid to affected domestic producers under the Continued Dumping and Subsidy Offset Act of 2000.
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In three separate cases headlined by Adee Honey Farms, Hilex Poly and American Drew (CIT Nos. 16-00127, 17-00090 and 17-00086) but including many other domestic producers as plaintiffs, the plaintiffs say the text of CDSOA as enacted by Congress expressly requires that CBP distribute “all interest” associated with antidumping and countervailing duties to affected domestic producers under CDSOA. CBP says delinquency interest is not included in CDSOA distributions.
Delinquency interest can reach not insignificant amounts, and to make matters worse, CBP has recently taken delinquency interest off the top of any awards of unpaid duties before distributing them to affected domestic producers, Adee Honey Farms says in its brief. After winning a case against one surety for $6.1 million, CBP took $5.5 million of that to pay down the delinquency interest that had accrued, and eventually distributed only $400,000 to the producers. CBP eventually settled the resulting challenge. Adee Honey Farms et al. now seek to compel CBP to distrubte the rest of the delinquency interest “Customs collected but unlawfully withheld from CDSOA distribution” under four AD duty orders through fiscal year 2014.
CBP says it gave warning to domestic producers in a 2001 proposed rule, and is entitled to Chevron deference on how it interprets CDSOA through its regulations. But the proposed rule did not clearly say that delinquency interest would not be paid out, and subsequent evidence shows that the decision to exclude delinquency interest came after CBP’s proposed rule, in response to concerns that its accounting systems weren’t set up at the time to distribute It, all three briefs said. And CBP is not entitled to Chevron deference because CDSOA is unambiguous in requiring the distribution of all interest.
Plaintiffs in Hilex Poly and American Drew, represented by the same legal team, also seek reconsideration of a CIT decision last year to dismiss any claims on refunds prior to two years since the filing of their lawsuits. While those claims were dismissed because CIT found the statute of limitations ran from the date of the 2001 proposed rule and had expired, the plaintiffs now say that the new evidence of the timing of CBP’s decision to exclude delinquency interest means CBP never actually gave notice of the decision.