Many U.S. laws governing trade agencies, such as CBP and the Department of Commerce, require notices and filings to be accomplished via mail. Still, the requirements become murky given new online interfaces such as ACE and ACCESS.
Understanding notice and filing is helpful for your actual notice or knowledge (i.e., actually knowing the substance of the notice/filing with or without having received the notice). However, actual knowledge usually does not satisfy the requirement of “mailing” when it comes to a notice or filing. The more important reason for understanding notice and filing requirements is to know when the clock begins (and ends) for judicial review.
Below, I will discuss the notice/filing requirements of Protests and ACCESS (antidumping and countervailing duty investigations). There are still a few unresolved wrinkles in the requirements, which will inevitably lead to additional litigation on the issue.
Protests
After you filed your protest (CBP Form 19) with Customs, how do you know when your protest was denied, and when the 180-day deadline for judicial review begins? It depends on how you initially filed the protest.
Generally, CBP is required to mail notices of denial. 19 CFR 174.30(a). If you filed the protest with ACE, on the other hand, 81 FR 53497 allows CBP to notify you of a denial through ACE. This means that if you filed the protest via snail mail, the effective notice should be via snail mail.
When mailing is required for a notice or filing, the CIT has taken a strict compliance position. In Medline Industries v. U.S., the court held a fax or an email does not satisfy mailing requirement when the language requires “mail” or “mailing”. Similarly in Tyler v. Donovan, the court found that mail notification was insufficient when the language required publications in the Federal Register exclusively.
The standard for notification of the denial of a protest was outlined in Bond Street v. U.S., where the court found that the clock for judicial review is not triggered until CBP mails the notice of protest denial, not when CBP make the decision to deny the protest.
What if the protest was filed by fax or email (unconventional but occasionally accepted methods)? Do you receive a notice of denial by mail? What if you filed via snail mail and only received notice through ACE? These questions move into untested waters.
ACCESS
ACCESS is an online interface platform that hosts antidumping and countervailing duty investigations. The system sends electronic notifications to the user’s ACCESS profile, which can be synced with a user’s email. However, many AD/CVD notices are required to be physically mailed for the “date of mailing” (and to trigger the clock for judicial review).
The recent case of Perfectus Aluminum v. U.S. clearly distinguished the parallel notifications for these investigations, citing Medline and Bond Street.
The plaintiff, Perfectus, filed the suit on April 23, 2018 in response to a final scope decision. The statute allowed an interested party to seek judicial review 30 days after Commerce mailed the final scope ruling. An electronic notification through ACCESS was sent to Perfectus in June of 2017. However, Commerce did not physically mail the final scope ruling until March 27, 2018.
The defendant argued that Perfectus was SOL because the date of mailing was the date of the electronic notification through ACCESS. The court disagreed, holding that the date of mailing was the date of physical mailing (snail mail), as required by the statutory language.
“Here, a strict construction limits the definition of “mailing” to a physical, hand-mailing . . . opposed to an electronic missive.”
The CIT has moved to unify the definition of “mailing” as applied to both protests and antidumping and countervailing duty investigations. The court’s reasoning is that the government statutorily waives its sovereign immunity by allowing for judicial review by the CIT. The date of filing/mailing/notice indicates the period of time that the government waives its sovereign immunity from suit.
The date of mailing is crucial for filings with agencies like CBP and Commerce because of the importance the court places on the judicial review process.
Stay tuned for more on deadlines, judicial review, and methods of service regarding trade issues.
Coffee & Trade 