PRO 2-05
OT:RR:CTF:ER
H254707 RGR
Port Director
U.S. Customs and Border Protection
330 2nd Avenue South, Suite 560
Minneapolis, MN 55401
Attn: Kristi L. Johnson
Re: Application for Further Review of Protest No: 3501-2013-100069 Concerning Entries Covered by the Antidumping Duty Order on Hand Trucks from the People’s Republic of China
Dear Port Director,
This letter is in response to the Application for Further Review (“AFR”) of Protest Number 3501-2013-1000069, filed on behalf of International Fidelity Insurance Co. (“International Fidelity”). Our decision follows.
FACTS:
On March 28, 2006, Superior Airco Wholesale (“Superior Airco”) filed Entry xxx-xxxx-216-8 for industrial hand trucks from the People’s Republic of China (“PRC”) with U.S. Customs and Border Protection (“CBP”). The subject entry was exported by Qingdao Taifa Group Co., Ltd. (“Qingdao Taifa”). This entry was subject to antidumping duties under Department of Commerce (“Commerce”) case A-570-891. See Notice of Antidumping Duty Order: Hand Trucks and Certain Parts Thereof From the People’s Republic of China, 69 Fed. Reg. 70,122 (Dec. 2, 2004) (“Antidumping Order”).
On July 28, 2008, Commerce published the final results for the period of review from December 1, 2005 through November 30, 2006 (“POR”). See Hand Trucks and Certain Parts Thereof from the People’s Republic of China; Final Results of 2005-2006 Administrative Review, 73 Fed. Reg. 43,684 (July 28, 2008) (“Final Results”). In the Final Results, Commerce assigned Qingdao Taifa the PRC-wide antidumping duty rate. See id. Subsequently, Qingdao Taifa filed a complaint at the Court of International Trade (“CIT”). On August 22, 2008, the CIT issued a preliminary injunction enjoining the liquidation of “certain entries which are subject to the antidumping duty order on hand trucks and certain parts thereof from the People’s Republic of China (A-570-891) for the period 12/1/2005 through 11/30/2006.” Commerce Message Number 8254203 (Sept. 10, 2008). Pursuant to the preliminary injunction, Commerce issued suspension instructions to CBP, and CBP suspended the liquidation of the entry at issue pursuant to those instructions. Id.
On July 12, 2011, the CIT sustained Commerce’s redetermination pursuant to the CIT’s remand, which assigned to Qingdao Taifa a separate rate of 145.90%. See Qingdao Taifa Group Co. Ltd. v. United States, 780 F. Supp. 2d 1342 (Ct. Int’l Trade 2011). An appeal was filed, thereafter, and on April 11, 2012, the United States Court of Appeals for the Federal Circuit (“CAFC”) affirmed the CIT’s decision. See Qingdao Taifa Group Co. Ltd. v. United States, 467 Fed. Appx. 887 (Fed. Cir. 2012). In response, Commerce published a notice of a court decision not in harmony with the final results and notice of amended final results in the Federal Register. See Hand Trucks from the People’s Republic of China: Notice of Court Decision Not in Harmony with Final Results and Notice of Amended Final Results, 77 Fed. Reg. 35,939 (June 15, 2012) (“Timken Notice”). The litigation became final on July 10, 2012, ninety days after the final decision where no appeal was filed. See 28 U.S.C. § 2101(c).
On July 20, 2012, Commerce issued liquidation instructions to CBP covering all shipments of hand trucks and parts thereof from the PRC exported by Qingdao Taifa during the POR at the rate of 145.90%. See Commerce Message Number 2202306 (July 20, 2012). CBP liquidated the subject entry on December 21, 2012, and assessed antidumping duties of 145.90%, as instructed by Message Number 2202306.
Because Superior Airco failed to pay the bill for the additional antidumping duties, CBP sent a formal demand to International Fidelity on March 1, 2013. On August 28, 2013, International Fidelity filed Protest Number 3501-2013-100069 with the Port of Minneapolis (“Port”). International Fidelity claims that CBP received notice of the removal of suspension when Commerce published the Timken Notice on June 15, 2012. See Hand Trucks from the People’s Republic of China: Notice of Court Decision Not in Harmony with Final Results and Notice of Amended Final Results, 77 Fed. Reg. 35,939 (June 15, 2012). International Fidelity argues that because CBP waited more than six months from that date to liquidate the entry on December 21, 2012, the entry liquidated by operation of law at the rate of duty, value, quantity, and amount of duty asserted by the importer of record.
The Port claims that CBP received notice of the lifting of suspension of liquidation on the date that Commerce issued its liquidation instructions on July 20, 2012. The Port argues that deemed liquidation would not have occurred until six months from the date of Commerce’s liquidation instructions, which would have been on January 20, 2013. Therefore, the Port claims that the entry properly liquidated with antidumping duties assessed on December 21, 2012, within the six-month statutory period for purposes of deemed liquidation.
ISSUE:
Whether the entry deemed liquidated by operation of law.
LAW AND ANALYSIS:
We note initially that the instant protest was timely filed, within 180 days from the mailing of notice of demand for payment against its bond. See 19 U.S.C. § 1514(c)(3). Notice of demand for payment against International Fidelity’s bond was made on March 1, 2013, and this protest was filed on August 28, 2013, within 180 days. Further, the protestant requests further review per 19 C.F.R. § 174.25(b). CBP’s regulations provide for further review of a protest when, inter alia, the decision against which the protest was filed:
(b) Is alleged to involve 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). At the time you requested further review, we had not ruled on this matter. Therefore, we agree that further review of the protest is warranted.
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. See Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1376 (Fed. Cir. 2002). “In order for a 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.” Id. CBP typically receives the relevant notice in the form of explicit liquidation instructions from Commerce. The courts, however, have recognized that other methods of notice are sufficient.
First, for deemed liquidation to occur, the suspension of liquidation must have been removed. See Fujitsu, 283 F.3d at 1364. In Fujitsu, the CAFC concluded that where liquidation is suspended pursuant to a court injunction, the suspension is removed when a “final court decision” is reached in the cause of action before the court, i.e., when the decision can no longer be appealed. Id. at 1377; see also, 19 U.S.C. § 1516a(e) (providing that entries suspended by court order shall be liquidated when there is a final court decision). Furthermore, the CIT does not have discretion to require liquidation before a case reaches final conclusion in the appeals process, which ensures that liquidation of subsequent entries can occur pursuant to the conclusive decision. See Hosiden Corp. v. Advanced Display Mfrs. Of Am., 85 F.3d 589, 591 (Fed. Cir. 1996). The subject entry of hand trucks exported by Qingdao Taifa was suspended by court-ordered injunction, during the pendency of the litigation concerning the Final Results.
The CAFC issued its conclusive decision concerning the subject entry on April 11, 2012, when it affirmed the CIT’s decision to sustain Commerce’s final results of the third redetermination. See Qingdao Taifa Group Co. Ltd. v. United States, 467 Fed. Appx. 887 (Fed. Cir. 2012). This decision became final ninety days later on July 10, 2012, when the time for petitioning the Supreme Court for a writ of certiorari expired. See 28 U.S.C. § 2101(c); Fujitsu, 283 F.3d at 1379. At this time, the injunction dissolved and lifted the suspension of liquidation on the subject entry.
Second, once suspension is removed, CBP must have received unambiguous and public notice of the removal of suspension. For court-ordered suspension of liquidation, the court in Fujitsu stated that in cases where litigation comes to an end and the court-ordered suspension of liquidation is removed, it is important that “an unambiguous and public starting point for the six-month liquidation period” is known. See Fujitsu, 282 F.3d at 1382. The court in Fujitsu found that Commerce’s subsequent publication of the court’s ruling in the Federal Register was such an “unambiguous and public starting point,” and thus, constituted notice for purpose of 19 U.S.C. § 1504(d). Id. Applied to the instant case, notice of the lifting of suspension of liquidation occurred in Commerce’s Message Number 2202306, dated July 20, 2012. Message Number 2202306 was both public and unambiguous notice to CBP that the suspension of liquidation for the entry at issue was lifted. See HQ H150415 (July 12, 2013) (holding that where no Federal Register notice was published following a final court ruling affirming Commerce’s final results, CBP first received public and unambiguous notice of the lifting of the suspension when Commerce issued liquidation instructions).
Third, for deemed liquidation to occur, the entry at issue must not have been liquidated within six months of CBP receiving notice. See Fujitsu, 283 F.3d at 1376. In this case, CBP first received notice of the lifting of suspension from Commerce’s Message Number 2202306 on July 20, 2012. CBP then liquidated the subject entry on December 21, 2012, within six months of the July 20, 2012, notice. Thus, CBP properly liquidated the entry in accordance with the notice from Commerce, and the entry did not deem liquidate.
International Fidelity argues that the June 15, 2012 Timken Notice and notice of Amended Final Results, also published on June 15, 2015, served as notice pursuant to 19 U.S.C. § 1504(d). However, these could not provide notice of the lifting of suspension. The court-ordered injunction suspending liquidation did not lift until July 10, 2012, ninety days after the litigation covered by the litigation expired when the time for petitioning the Supreme Court for a writ of certiorari ended. See 28 U.S.C. § 2101(c). Thus, these notices could not provide notice of the lifting of suspension as suspension had not yet been lifted. No prior form of notification served as public and unambiguous notice to CBP of the lifting of suspension, and thus, Message Number 2202306 served as “notice” pursuant to 19 U.S.C. § 1504(d). See HQ H150415 (July 12, 2013) (holding that where no Federal Register notice was published following a final court ruling affirming Commerce’s final results, CBP first received notice of the lifting of the suspension when Commerce issued liquidation instructions). Based on all of the above, CBP timely liquidated the entry at issue in accordance with Commerce’s instructions.
HOLDING:
Under the facts described, and in response to the request for further review, you are instructed to DENY the protest.
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 of 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