LIQ-4-01
OT:RR:CTF:ER
H055437 PTM
Mr. Judson W. Murdock II, Area Port Director
Port of Dallas/Fort Worth
P.O. Box 619050
Dallas/Fort Worth Airport, TX 75261
RE: Protest No. 5501-08-100458, Reimbursement Certificates
Dear Mr. Judson,
Your office forwarded a copy of the above-referenced protest with Application for Further Review pursuant to Customs Directive 099-3550-065. Our decision follows:
FACTS:
Raytheon Aircraft Parts and Inventory (herein “Raytheon”, now known as Hawker Beechcraft Corporation) imported ball bearings during 2007 and 2008 from the United Kingdom and subject to anti-dumping duties pursuant to case A412-201. The protested entries entered on the following dates:
Entry Number
Date
110-XXXXXX6-1
06/01/2007
110-XXXXXX0-1
07/20/2007
110-XXXXXX9-9
07/23/2007
110-XXXXXX8-4
07/24/2007
110-XXXXXX9-7
11/09/2007
110-XXXXXX5-8
11/23/2007
110-XXXXXX5-8
11/29/2007
110-XXXXXX1-9
01/09/2008
UPS-XXXXXX9-9
03/14/2008
UPS-XXXXXX2-8
03/19/2008
UPS-XXXXXX1-9
04/17/2008
UPS-XXXXXX5-3
04/29/2008
Raytheon deposited antidumping duties on each of the entries. With each entry, Raytheon timely filed reimbursement certificates that contained the following information:
UPS Supply Chain Solutions File Number
Entry Number
Date
Commodity
Manufacturer
Country of Origin
Date on or after which the product was purchased
Signature Line
Importing Company
Name and title of signer
Each certificate also contained the following statement:
ANTI-DUMPING DUTY CERTIFICATE (19 CFR 353.26)
I hereby certify that I (HAVE) or (HAVE NOT) entered into any agreement or the understanding for the payment or for the refunding to me, by the manufacturer, producer, seller, or exporter, of all or any part of the anti-dumping duties assessed upon the following importations
The phrase “HAVE NOT” is circled on each of the certificates furnished. On October 2, 2008, the import specialist at the CBP Port of Dallas-Fort Worth (herein the “port”) issued Notice of Action (CBP Form 29) of a rate advance for the subject entries. The explanation for the rate advance indicated that the non-reimbursement certificates were not valid, which caused a doubling of anti-dumping duties due.
On November 26, 2008, Raytheon filed protest against CBP’s decision to assess double anti-dumping duties on the protested entry. On March 3, 2009, your office forwarded the protest and Application for Further Review (“AFR”). Raytheon states that the non-reimbursement certificates were valid because they were timely filed and contained the necessary information. The port contends that the certificates were invalid because the certificate is signed by an attorney in fact (broker) and not a company officer.
Additionally, the port states that the Department of Commerce (“Commerce”) requires that the liquidation period must be enumerated in yearly increments, which was not done with the certificates filed with entry.
ISSUE:
Whether the certificates of non-reimbursement of dumping duties were deficient.
LAW AND ANAYLYSIS
Upon assessment of antidumping duties, Commerce requires that the importer provide a reimbursement statement to CBP. The importer should provide the reimbursement statement prior to liquidation of the entry. If the importer has been reimbursed antidumping duties, or if a certificate is not provided, CBP must double the antidumping duties in accordance with the regulation. The requirement of a certificate of non-reimbursement, and the specific information and language required in the certificate, is set forth in the Commerce regulations at 19 CFR §351.402(f)(2), which states:
Certificate. The importer must file prior to liquidation a certificate in the following form with the appropriate District Director of Customs: I hereby certify that I (have) (have not) entered into any agreement or understanding for the payment or for the refunding to me, by the manufacturer, producer, seller, or exporter, of all or any part of the antidumping duties or countervailing duties assessed upon the following importations of (commodity) from (country): (List entry numbers) which have been purchased on or after (date of publication of antidumping notice suspending liquidation in the Federal Register) or purchased before (same date) but exported on or after (date of final determination of sales at less than fair value).
It appears that Raytheon used older form certificates that were filled in manually. At the top of the form, it references 19 CFR 353.26, which was the section of the Commerce regulations that addressed antidumping duty non-reimbursement certificates prior to the enactment of 19 CFR §351.402, which went into effect in 1997. The default language of the certificates changed slightly with the enactment of §351.402, but much of the information requested is identical. The information required from the importer appears in the parentheses in the statement shown above. In order, they are:
Whether the importer has entered into any agreement or understanding for the payment or refund of antidumping or countervailing duties
The commodity involved
The country of origin
The entry numbers, and
The date of publication of the antidumping notice suspending liquidation in the Federal Register
As outlined in the facts set forth above, the certificates submitted contain the information required by §351.402. We turn now to an examination of the two specific problems the port identified with the certificates. First, the port stated that the certificates had been signed by a broker, and not by a competent officer of the importer of record as required. The individual who signed, Vicki Wertz, is the Senior Import and Compliance Advisor for Hawker-Beechcraft (formerly Raytheon). There may have been confusion at the port as to her status as an employee, as she signed the certificates “Vicki Wertz, Attorney-In-Fact.” That notwithstanding, as Senior Import and Compliance Advisor she qualifies as a competent officer for the importer of record.
The second problem identified by the port was that the certificates did not state the liquidation period in yearly increments. The CBP “Guidance for Certificates of Reimbursement” publication states that Commerce recognizes two types of reimbursement certificates: individual and blanket certificates. Either type may be supplied to fulfill the reimbursement certificate requirement. Under the guidance for blanket certificates, it states that the statements must provide the review period covered, and that the time period for which a blanket certificate of reimbursement is applicable is the longer of either 12 months or the administrative review period. Individual entry certificates do not have time period requirements. Rather, the filer must state the date on or after the date of publication of the antidumping notice suspending liquidation in the Federal Register. Here, the filer correctly identified the original date of the publication of the antidumping duty notice, May 15, 1989 as set forth in 54 FR 20910.
Consequently, although the importer employed an out of date form to file the non-reimbursement certificates, the certificates nevertheless satisfied the requirements of 19 CFR §351.402. The party signing the certificate is an officer of the importer, as required. Finally, the certificates filed were individual entry non-reimbursement certificates, which do not require the yearly ranges required by blanket statements. Therefore, the assessment of additional antidumping duties was improper.
HOLDING
You are instructed to GRANT the protest in full. You are to reliquidate the subject entries without the assessment of double antidumping duties and at the rate and amount of duties deposited at entry. Sixty days from the date of the decision Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director Commercial and Trade Facilitation Division