RR:CR:DR 229810 IDL
U.S. Customs and Border Protection
Los Angeles-Long Beach Seaport
301 E. Ocean Blvd.
Long Beach, CA 90802
Re: Protest No. 2704-02-102728; 19 U.S.C. 1514; Antidumping Duties
This is in response to your correspondence concerning Kanan Foods, Inc., Protest No. 2704-02-102728.
During the period of March 15, 2000 through January 10, 2001, Kanan Foods, Inc. (”Kanan”) made four entries of Canned Mushrooms manufactured by Agro Dutch Foods Limited, of India (“Agro”).
Previously, on February 19, 1999, the Department of Commerce (“Commerce”) had published on Case A-533-813, Notice of Amendment of Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Preserved Mushrooms From India (“Order”).
64 FR 8311. The Order listed the antidumping duty margin for Agro merchandise at 6.28%.
During the period of March 15, 2000 through January 10, 2001, Kanan made the subject entries.
On March 7, 2002, Commerce published on Case A-533-813, Certain Preserved Mushrooms from India: Preliminary Results of Antidumping Duty Administrative Review (“Preliminary Results”). 67 FR 10371. The Preliminary Results listed the antidumping duty margin for Agro merchandise at 1.54%.On July 12, 2002, Commerce published on Case A-533-813, Notice of Final Results of Antidumping Duty Administrative Review (“Final Results”). 67 FR 46172. The Final Results listed the antidumping duty liability for Agro merchandise at 27.80%.
On August 23, 2002, Commerce issued on Case A-533-813, Liquidation Instructions for Mushrooms from India, via Message No. 2235207. The instructions directed the U.S. Customs Service (“Customs”) (now U.S. Customs and Border Protection (CBP) to assess Kanan antidumping duty liability of $1.137 per kilogram (drained-weight) on Agro merchandise entered during the period of February 1, 2000 through January 31, 2001. The instructions “constitute the immediate lifting of suspension of liquidation of entries for the merchandise and period listed” above.
On September 5, 2002 Customs issued to Kanan a CF-29 Notice of Action. The CF-29 cited the $1.137/kg rate listed in Commerce’s liquidation instructions, and further provided that “Entry 940-2 has been recalculated to 11,580 kg drained weight, thus increasing your duty due”.
On September 27, 2002, the port liquidated all four entries. On
October 1, 2002, the Court of International Trade issued an injunction on Case A-533-813, ordering a suspension of liquidation on all unliquidated entries.
On December 26, 2002, Kanan filed Protest No. 2704-02-102728. Protestant alleges that the liquidations were executed prematurely and incorrectly; that since Kanan was not a party to the administrative reviews, it could not intervene in order to refute adverse inferences regarding Kanan’s and Agro’s affiliation status; that Commerce rushed issuance of liquidation instructions to Customs, preventing Agro from taking appropriate legal precautions; that counsel for Agro neglected to immediately request an injunction from the C.I.T. barring liquidation of the entries during the pendency of the lawsuit; that Agro, in appointing new counsel, failed to inform new counsel that previous counsel had failed to request a liquidation injunction; that new counsel discovered in late September of 2002 that previous counsel failed to request a liquidation injunction from the C.I.T.; that new counsel for Agro immediately sought injunctive relief against liquidation of the subject entries; and that Kanan was unaware that new higher antidumping duties had been assessed until it received customs bills.
In addition, Kanan claims that Customs erred in undercharging Kanan on one of the four entries, Entry No. 336-xxxx940-2 (“Entry 940-2”). Kanan protests that Customs decision, arguing that Customs should reliquidate that entry regardless of the merits of the prior arguments.
(1) Whether Customs prematurely liquidated the subject entries on September 27, 2002?
(2) Whether Customs incorrectly assessed duties against Entry 940-2?
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed under the statutory and regulatory provisions for protests (see 19 U.S.C. § 1514). Customs liquidated the subject entries on September 27, 2002, and Kanan filed Protest No. 2704-02-102728 on December 26, 2002.
Whether Customs prematurely liquidated the subject entries on September 27, 2002?
In order to protest a decision under section 1514, a decision must be made by Customs. See 1514(a); see also Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002), reversing Xerox, 118 F.Supp. 2d 1353, Ct. Int’l Trade (October 19, 2000); Nichimen America, Inc. v. United States, 938 F.2d 1286 (1991 Fed. Cir.); HQ 224650 (November 25, 1994). Generally, antidumping duty rates correctly applied by Customs are not protestable. Fujitsu Ten Corp. v. United States, 21 C.I.T. 104;
957 F. Supp 245 (January 29, 1997). Although an importer may protest Customs’ failure to follow a Commerce instruction under section 1514 (American Hi-Fi International, Inc. v. United States, 19 C.I.T. 1340 (1995)), the role of Customs in the antidumping process is “simply to follow Commerce’s instructions in collecting deposits of estimated duties and in assessing antidumping duties…at the time of liquidation.” (emphasis added) HQ 225382; see also, Mitsubishi Electronics America, Inc. v. United States, 44 F. 3d 973 (Fed. Cir. 1994); Nichimen America, Inc. v. United States, 938 F. 2d 1286 (1991). A protestant may not challenge facts relating to determinations by Commerce in a 1514 protest action. See ABC International Traders v. United States, 19 C.I.T. 787
(May 23, 1995); HQ 224623.
Evidently, the arguments presented by Kanan relating to premature liquidation are not protestable against any Customs decision, since they address the antidumping determination itself, and not Customs’ implementation of Commerce’s instructions. Customs merely followed Commerce’s instructions in liquidating the subject entries on
September 27, 2002. Therefore, Customs did not prematurely liquidate the subject entries.
Whether Customs incorrectly assessed duties against Entry 940-2?
With regard to Entry 940-2, Kanan disputes the amount of antidumping duties assessed by Customs, pursuant to 19 U.S.C. 1514(a)(2). Kanan asserts that it entered 11,012 kg of merchandise, and that Customs undercharged Kanan by $220.39.
However, according to entry summary documents and the CF-29, dated September 5, 2002, Entry 940-2 actually consisted of 11,580 kg of merchandise. Commerce instructed Customs to assess antidumping duties at the rate of $1.137/kg. At that rate, the port should have assessed antidumping duties totaling $13,166.46.
According to ACS, Kanan deposited on entry $1,949.82. Kanan concedes that Customs then billed Kanan for $11,216.64. Therefore, it appears that Customs correctly assessed Kanan $13,166.46 (sum of the deposit and the billed amount) on Entry 940-2.
The protest should be DENIED in full. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of 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.
William G. Rosoff, Chief
Duty and Refund Determination Branch