• Type : • HTSUS :

PRO 2-05, LIQ 9-02, LIQ 4-01
OT:RR:CTF:ER H136435 GGK

Port Director
U.S. Customs and Border Protection
1901 Cross Beam Rd.
Coffey Creek Business Park
Charlotte, NC 28217

Attn: Jennifer Jameson, Assistant Port Director

RE: Texmac Inc.: Application for further review of Protest 1512-10-100138

Dear Port Director:

This protest review decision is in response to the application for further review (“AFR”) for Protest number 1512-10-100138 (“protest”), filed by the protestant, Texmac Inc. (“Texmac”), on October 5, 2010. We apologize for the delay in our response.

FACTS: Between December 29, 2004 and April 19, 2005, Texmac exported and entered multiple shipments of radial ball bearings from Japan. The entries are as follows: xxx-xxxx7541, entered on December 29, 2004; xxx-xxxx7525, entered on December 30, 2004; xxx-xxxx8309, entered on January 24, 2005; xxx-xxxx8739, entered on February 2, 2005; xxx-xxxx8721, entered on February 7, 2005; xxx-xxxx8911, entered on February 14, 2005; xxx-xxxx9141, entered on February 21, 2005; xxx-xxxx0412, entered on March 30, 2005; and xxx-xxxx3286, entered on April 19, 2005.

Radial ball bearings from Japan are subject to antidumping duties. See Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings, and Parts Thereof From Japan, 54 Fed. Reg. 20,904 (May 15, 1989) (“Antidumping Duty Order”). At the time of entry, Texmac asserted that the merchandise was manufactured by NTN Corporation (“NTN”); therefore, the 2.74 percent cash deposit rate assigned to the company applied. Liquidation of the entries were suspended pending the Department of Commerce’s (“Commerce”) administrative review covering all entries of ball bearings from Japan entered between May 1, 2004, through April 30, 2005. On July 14, 2006, Commerce published the final results of the administrative review. See Ball Bearings and Parts Thereof from France, Germany, Italy, Japan and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews, 71 Fed. Reg. 40,064 (July 14, 2006). Subsequently, on August 10, 2006, Commerce issued liquidation instructions requiring CBP to assess antidumping duties for the entries at issue. Message No. 6222209 (Aug. 10, 2006). In its instructions, Commerce assigned specific antidumping duty rates to named importers or customers who purchased ball bearings produced or exported by NTN. Id. If the importer was not specifically named, however, Commerce instructed that all shipments of ball bearings produced or exported by NTN would be subject to the all-others rate in effect at the date of entry, or 45.83 percent. Id. Texmac was not named as an importer with an assigned antidumping duty rate; therefore, CBP properly applied the all-others rate as instructed by Commerce. Id.

On April 9, 2010, CBP posted notice in the customs house bulletin that entries xxx-xxxx7541, xxx-xxxx7525, xxx-xxxx8309, xxx-xxxx8739, xxx-xxxx8721, xxx-xxxx8911, xxx-xxxx9141, and xxx-xxxx3286 deemed liquidated on January 14, 2007, at the rate asserted at the time of entry. Notice of the January 14, 2007, deem liquidation of entry xxx-xxxx0412 was posted in the customs house bulletin on April 23, 2010. Subsequently, on June 24, 2010, CBP sent Texmac two CBP Form 29s stating that it had rate advanced the entries at issue with interest. Thereafter, on July 8, 2010, CBP reliquidated the entries at all-others rate for ball bearings from Japan in effect on the date of entry, or 45.83 percent, as instructed by Commerce. In response, Texmac filed a protest contesting the reliquidations on October 5, 2010. In arguing against the reliquidations, Texmac asserts that the entries deemed liquidated at the lower rate. The port acknowledged that the entries deemed liquidated. However, under its reliquidation authority, the port reliquidated the entries within 90 days from the date on which notice of the deemed liquidation was posted in the customs house bulletin.

ISSUES:

Whether CBP properly reliquidated the entries.

LAW AND ANALYSIS:

We note initially that the instant protest was timely filed, within 180 days from the date of reliquidation. 19 U.S.C. § 1514(c)(3)(A). Reliquidation of Texmac’s entries occurred on July 8, 2010, and this protest was filed on October 5, 2010, within 180 days. Additionally, further review is warranted because “the protest involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee, or by the Customs courts." 19 C.F.R. § 174.24(b). Specifically, we will address the validity of CBP’s voluntary reliquidation, pursuant to 19 U.S.C. § 1501, of entries that are deemed liquidated. Accordingly, the criteria for further review by this office are satisfied per 19 C.F.R. §§ 174.24(b) and 174.26(b)(1)(iv).

Generally, assessed antidumping duties properly applied by CBP are not protestable because "Customs has a merely ministerial role in liquidating antidumping duties…" Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). However, inasmuch as Texmac protests the liquidation, i.e., disputes the application by CBP of Commerce's liquidation instructions, this matter is protestable. See Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002).

Texmac contends that CBP did not liquidate the entries within six months after receiving notice of the removal of suspension of liquidation and the protested entries deemed liquidated as entered per 19 U.S.C. § 1504. Section 1504(d) of Title 19 requires that CBP liquidate entries within six months after receiving "notice" that a suspension of liquidation of such entries has been removed. 19 U.S.C. § 1504(d). If CBP fails to timely liquidate the entries after receiving notice, the entries are "deemed" liquidated at the rate asserted at the time of entry. Id. See also, Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1376 (Fed. Cir. 2002). Texmac argues that the reliquidation of its entries at the higher rate of 45.83 percent was improper because the entries deemed liquidated. Instead, Texmac seeks reliquidation at the rate asserted at the time of entry, 2.74 percent. However, because the entries were properly reliquidated, the protest is denied.

Prior to 2004, CBP did not have the authority to reliquidate deemed liquidated entries. However, on December 3, 2004, Congress gave CBP the statutory authority to voluntary reliquidate an entry that liquidated in accordance with 19 U.S.C. § 1504 within 90 days from the date on which notice of the original liquidation was given to the importer. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. No. 108-429, 118 Stat. 2598 (codified in 19 U.S.C. § 1501); see also Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1362 n.26 (Fed. Cir. 2006) (noting that “[s]ince § 1504(d) is the deemed liquidation provision, it follows that deemed liquidations are subject to reliquidation by Customs”). CBP’s implementing regulations further clarify the ability for CBP to reliquidate deemed liquidated entries. Section 173.3 of CBP’s regulations state that “within 90 days from the date notice of deemed liquidation…is given to the importer…the port director may reliquidate on his own initiative….” 19 C.F.R. § 173.3.

None of the facts referenced above are in dispute here. On July 14, 2006, Commerce published its final results in the Federal Register. See Ball Bearings and Parts Thereof from France, Germany, Italy, Japan and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews, 71 Fed. Reg. 40,064 (July 14, 2006). Commerce issued liquidation instructions on August 10, 2006. See Message No. 6222209 (Aug. 10, 2006). CBP did not liquidate the entries and six months from Commerce’s publication of its final results in the Federal Register the entries deemed liquidated, on January 14, 2007. International Trading Co. v United States, 281 F.3d 1268, 1277 (Fed. Cir. 2002). Upon discovering the deemed liquidation had occurred, on April 9, 2010 and April 23, 2010, CBP posted notices of the deemed liquidations in the customs house. On June 24, 2010, CBP issued two notices of action to Texmac advancing the rate of antidumping duties to the all-others rate per Commerce’s instructions in Message number 6222209 (Aug. 10, 2006). Thereafter, on July 8, 2010, CBP reliquidated the entries. The reliquidation of the deemed liquidated entries must occur within 90 days from the date notice of the underlying deemed liquidation occurred. 19 U.S.C. § 1501. Here, notice of the deemed liquidation occurred on April 9, 2010, and CBP timely reliquidated the entries on July 8, 2010, within 90 days.

HOLDING:

Texmac’s entries were properly reliquidated at the rate of 45.83 percent and protest 1512-10-100138 should be DENIED.

In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Sixty days from the date of the decision, the Office International Trade, 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