LIQ 11
OT:RR:CTF:ER
H307772 SLJ
Center Director Base Metals Center of Excellence and Expertise U.S. Customs and Border Protection 610 S. Canal St. 3rd Floor Chicago, Illinois 60607
Attn: Christine Ardis, Import Specialist
RE: Suspension of liquidation; deemed liquidation; A-570-914; C-570-915; light-walled rectangular pipe and tube from the People's Republic of China.
Dear Center Director:
The following is in response to an application for further review of protest number 330318100035 regarding whether the protested entries deemed liquidated. The instant protest is filed by Lexon Insurance Company (“Lexon”) as surety for BBM Concrete Products, Inc. (“BBM”).
FACTS:
Lexon is the surety which issued the bond for five entries of merchandise of hot dipped, galvanized steel, rectangular tube from the People’s Republic of China (“China”) imported and entered between May 22, 2016, to November 29, 2016, on behalf of BBM. The specific entry numbers and the dates they were entered at issue are: xxx-xxxx8102 (May 22, 2016); xxx-xxxx9654 (July 28, 2016); xxx-xxxx0991 (September 9, 2016); xxx-xxxx2195 (November 7, 2016); and xxx-xxxx2609 (November 29, 2016).
BBM originally entered these five entries as type 01 formal consumption entries not subject to any antidumping and/or countervailing duty orders. Upon reviewing the entries, U.S. Customs and Border Protection (“CBP”) determined that each of BBM’s five entries was subject to both an antidumping duty order (Case No. A-570-914) and a countervailing duty order (Case No. C-570-915) on light-walled rectangular pipe and tube from China. See Final Determination of Sales at Less Than Fair Value and Affirmative Determination of Critical Circumstances, in Part: Light-Walled Rectangular Pipe and Tube from the People's Republic of China, 73 Fed. Reg. 35,652 (June 24, 2008) (hereinafter “ADD Order”) and Light-Walled Rectangular Pipe and Tube from the People's Republic of China: Notice of Countervailing Duty Order, 73 Fed. Reg. 45,405 (Aug. 5, 2008) (hereinafter “CVD Order”). CBP informed BBM of its determination by issuing a Customs Form (CF) 29, i.e., Notice of Action, for four out of the five entries. These notices advised BBM that the hot dipped, galvanized steel, rectangular tube covered by the entries was subject to the ADD Order and CVD Order, and that CBP had accordingly changed the entries from type 01, entries for consumption, to type 03 entries, entries for consumption subject to ADD and/or CVD. CBP additionally explained that it would assess antidumping and countervailing duties in accordance with the orders upon liquidation.
All five entries were liquidated, and four reliquidated, as follows, pursuant to the dates recorded in CBP’s Automated Commercial Environment (“ACE”):
Entry No.
Liquidation Date
Reliquidation Date
-8102
March 2, 2018
April 27, 2018
-9654
March 2, 2018
April 27, 2018
-0991
March 2, 2018
April 27, 2018
-2195
March 2, 2018
April 27, 2018
-2609
March 2, 2018
N/A
Liquidation of the entries was statutorily suspended pursuant to 19 U.S.C. § 1673b(d). See DOC Message No. 5301301 (Oct. 28, 2015) and DOC Message No. 6306305 (Nov. 1, 2016) (indicating that CBP should continue to suspend liquidation for merchandise subject to the ADD and CVD orders).
For merchandise subject to the ADD Order that was entered between August 1, 2015 and July 31, 2016, applicable to entry numbers -8102 and -9654, Commerce issued liquidation instructions on November 7, 2016. DOC Message No. 6312309 (Nov. 7, 2016). For merchandise subject to the ADD Order that was entered between August 1, 2016 and July 31, 2017, applicable to entry numbers -0991, -2195, and -2609, Commerce issued liquidation instructions on November 8, 2017. DOC Message No. 7312303 (Nov. 8, 2017). For merchandise subject to the CVD Order that was entered between January 1, 2016 and December 31, 2016, Commerce issued liquidation instructions on October 31, 2017. DOC Message No. 7304314 (Oct. 31, 2017). All five of the entries, as demonstrated in the table above, were liquidated on March 2, 2018. Four out of the five entries were then reliquidated on April 27, 2018. According to ACE, it appears that entries were reliquidated to account for an additional payment made by BBM.
This protest was filed November 30, 2018. Lexon does not dispute that the goods are subject to the ADD Order (Case No. A-570-914) or CVD Order (Case No. C-570-915) on light-walled rectangular pipe and tube from China. Lexon instead argues that the entries deemed liquidated one year from the date of entry.
ISSUE:
Whether the entries deemed liquidated one year from the date of entry.
LAW AND ANALYSIS:
As an initial matter, we find that this protest meets the criteria for further review. We find that this protest was timely filed on November 30, 2018, within 180 days after the notice of demand for payment against the surety’s bond was mailed. See 19 U.S.C. § 1514(c)(3)(B). The notice of demand for payment was run on September 1, 2018, and Lexon filed this protest on November 30, 2018, within the 180-day time limit. We further find that this protest involves questions of law and fact which have not previously been ruled upon (19 C.F.R. § 174.24(b)), namely whether the entries deemed liquidated as provided by 19 U.S.C. § 1504.
Lexon argues the five entries at issue in this protest “deemed liquidated at the rate of duty, value, quantity, and amount of duties asserted” by BBM, i.e., without ADD or CVD. Specifically, Lexon argues deemed liquidation occurred because CBP failed to extend liquidation or liquidate of the entries “within one (1) year of the date of entry” as required by 19 U.S.C. § 1504.
Pursuant to 19 U.S.C. § 1504(a)(1), “[u]nless an entry of merchandise for consumption is extended under subsection (b) of this section or suspended as required by statute or court order . . . an entry of merchandise for consumption not liquidated within 1 year. . . shall be deemed liquidated.” (Emphasis added). Here, liquidation for each of the five entries was suspended by statute pursuant to 19 U.S.C. § 1673b(d). Statutory suspension of liquidation for the entries at issue was continued through Commerce messages according to the statutory authority granted by 19 U.S.C. § 1673b(d). See DOC Message No. 5301301 (Oct. 28, 2015) and DOC Message No. 6306305 (Nov. 1, 2016) (indicating that CBP should continue to suspend liquidation for merchandise subject to the ADD and CVD orders). Therefore, statutory suspension of liquidation was in effect when BBM entered all five of the subject entries.
Once the suspension of liquidation is removed, CBP must liquidate the entries within six months of receiving notice that suspension of liquidation has been lifted. 19 U.S.C. § 1504(d). Thus, for deemed liquidation to occur, “(1) the suspension of liquidation that was in place must have been removed; (2) Customs must have received notice of the removal of the suspension; and (3) Customs must not liquidate the entry at issue within six months of receiving such notice.” Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1376 (Fed. Cir. 2002).
In this case, the statutory suspension of liquidation lifted and CBP received notice of the lifting of suspension when Commerce issued liquidation instructions according to 19 CFR § 351.212(c). See also HQ H262512 (March 21, 2017) (“If no [administrative] review is requested, automatic assessment occurs.”) The table below shows the Commerce message and relevant dates:
Entry No.
Message No.
Lifting of Suspension
6-Month
Liquidation Deadline
Liquidated
Reliquidation
Deadline
Reliquidated
-8102
7304314
Oct. 31, 2017
April 30, 2018
March 2, 2018
June 2, 2018
April 27, 2018
-9654
7304314
Oct. 31, 2017
April 30, 2018
March 2, 2018
June 2, 2018
April 27, 2018
-0991
7312303
Nov. 8, 2017
May 8, 2018
March 2, 2018
June 2, 2018
April 27, 2018
-2195
7312303
Nov. 8, 2017
May 8, 2018
March 2, 2018
June 2, 2018
April 27, 2018
-2609
7312303
Nov. 8, 2017
May 8, 2018
March 2, 2018
N/A
N/A
As demonstrated in the table above, each of the five entries was liquidated in advance of the six-month deadline for liquidation. Consequently, none of the protested entries deemed liquidated.
Four entries (-8102, -9654, -0991, and -2195) were reliquidated on April 27, 2018. Pursuant to 19 U.S.C. § 1501, CBP can voluntarily reliquidate an entry “within 90 days from the date of the original liquidation” for all merchandise entered after February 24, 2016. Notice of reliquidation is not required to be issued as February 24, 2016, when the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA) was enacted and amended the statutory language of 19 U.S.C. § 1501. See HQ H287014 (Nov. 8, 2019). In this case, the four reliquidations occurring on April 27, 2018, were timely because they occurred prior to the expiration of CBP’s 90-day deadline for voluntary reliquidation.
HOLDING:
Lexon’s protest should be DENIED because according to the above, liquidation was suspended by statute and the entries were subsequently timely liquidated before deemed liquidation occurred.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
for Yuliya A. Gulis, Division Director Commercial and Trade Facilitation Division