HQ H268908
ENT 2-05
H268908 SMS
OT:RR:CTF:ER
Port Director
U.S. Customs and Border Protection
1100 Raymond Boulevard
Newark, NJ 07102
RE: L.F.I. Incorporated’s Application for Further Review of Protest 4601-12-102091
Dear Port Director:
This is in response to the application for further review (“AFR”) of Protest 4601-12-102091 (“protest”), filed by L.F.I. Incorporated (“L.F.I.”), on October 17, 2012. L.F.I alleges that U.S. Customs and Border Protection (“CBP”) untimely liquidated the entries under protest. Our further review of the protest is below.
FACTS:
L.F.I. is a company that imports various food products, including preserved mushrooms. Between May 11, 2009 and September 30, 2009, the company imported shipments of preserved mushrooms manufactured by Ayecue (Liaocheng) Foodstuff Co., Ltd. (“Ayecue Liaocheng”) in the People’s Republic of China (“China”), and exported by Ayecue International SLU (“Ayecue International”). Upon making entry, the shipments were assigned entry numbers xxx-xxxx170-7, xxx-xxxx057-6, xxx-xxxx123-6, xxx-xxxx529-4, xxx-xxxx807-4, xxx-xxxx817-3, xxx-xxxx808-2, and xxx-xxxx056-8. All eight entries are at issue in the instant protest.
Certain preserved mushrooms from China are subject to antidumping duties. See Notice of Amendment of Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Preserved Mushrooms From the People’s Republic of China, 64 Fed. Reg. 8,308 (Feb. 19, 1999). Liquidation of the entries at issue was suspended pending the Department of Commerce’s (“Commerce”) administrative review covering all entries of certain preserved mushrooms from China entered between February 1, 2009 and January 31, 2010. On September 14, 2011, Commerce published the final results of the administrative review. See Certain Preserved Mushrooms From the People’s Republic of China: Final Results of Antidumping Duty Administrative Review and Rescission in Part, 76 Fed. Reg. 56,732 (Sept. 14, 2011). Subsequently, on November 10, 2011, Commerce published an amended final results of the administrative review to correct ministerial errors. See Certain Preserved Mushrooms From the People’s Republic of China: Amended Final Results of Antidumping Duty Administrative Review, 76 Fed. Reg. 70,112 (Nov. 10, 2011).
Thereafter, Commerce issued liquidation instructions to CBP based on its final results and amended final results. On November 25, 2011, Commerce issued Message Number 1329307. According to these instructions, Commerce instructed CBP to assess an antidumping liability that is lower than the rate assigned to the China-wide entity for all shipments of certain preserved mushrooms from China “manufactured or exported by” specific firms and entered for consumption during the period between February 1, 2009 and January 31, 2010. Id. Included in the named firms are the manufacturer, Ayecue Liaocheng, and the exporter, Ayecue International. Id.; see also, HQ H239242 (Oct. 28, 2014). Based on these instructions, the entries at issue are subject to an antidumping liability equal to 76.12 percent of the entered value.
In protesting CBP’s liquidation of the entries, L.F.I. argues that the entries deemed liquidated by operation of law on March 14, 2012, six months after Commerce issued the final results of antidumping duty administrative review and rescission in part, on September 14, 2011. The port asserts that the entries were timely liquidated on April 20, 2012, as the entries were suspended until Commerce published the amended final results, on November 10, 2011. The port further contends that whether or not the amended final results were issued timely, in respect to the final results, is not a protestable matter. Based on all of the above, we evaluate whether L.F.I.’s entry was properly liquidated.
ISSUE:
Whether the entries at issue deemed liquidated by operation of law.
LAW AND ANALYSIS:
We note initially that the instant protest was timely filed, within 180 days from the date of liquidation. 19 U.S.C. § 1514(c)(3)(A). Liquidation of L.F.I.’s entries occurred on April 20, 2012, and this protest was timely filed on October 17, 2012, 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 examine whether the amended results of antidumping duty administrative review pertinent to the merchandise at issue extended the statutory period for liquidation. Accordingly, the criteria for further review is satisfied per 19 C.F.R. § 174.24(b) and 19 C.F.R. § 174.26(b)(1)(iv).
Generally, it is well settled that when assessing and collecting antidumping duties CBP merely follows Commerce’s instructions. See Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). The courts have consistently held that CBP’s role in the antidumping process is simply to follow Commerce’s instructions in collecting deposits of estimated duties and in assessing antidumping duties, together with interest, at the time of liquidation. See Fujitsu Ten Corporation of America v. United States, 21 C.I.T. 104, 107 (1997); and American Hi-Fi International, Inc. v United States, 19 C.I.T. 1340, 1342-43 (1995). In Mitsubishi, the Court held that “CBP has a merely ministerial role in liquidating antidumping duties.” 44 F.3d at 977. Thus, CBP simply applies the antidumping duty rates determined by Commerce to entries of merchandise in accordance with Commerce’s liquidation instructions. Accordingly, CBP must follow Commerce’s instructions with regard to the entry of mushrooms from China at issue in this case. Inasmuch as L.F.I protests the timing of the liquidation, and what constitutes the official notice of lifting of suspension for the entries at issue, this matter is protestable. See Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002); see also, HQ 221591 (Feb. 13, 1990) (a mistake in the liquidation process can be corrected by one of the statutory methods set forth in 19 U.S.C. § 1514).`
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. 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, but the courts have recognized that other methods of notice are sufficient.
Liquidation of L.F.I’s entry was suspended by statute pending the outcome of Commerce’s administrative review of the antidumping case. See 19 U.S.C. § 1673b(d)(2). For entries subject to an administrative review, the statutory suspension of liquidation is removed once Commerce completes and publishes the final results of the review. See International Trading Co. v. United States, 281 F.3d 1268, 1277 (Fed. Cir. 2002) (holding that publication of the final results of an antidumping duty administrative review removes the suspension of liquidation). Moreover, the Court of Appeals for the Federal Circuit determined that publication of the final results in the Federal Register constitutes notice from Commerce to CBP that the suspension of liquidation on entries subject to the administrative review is removed. Id. At issue in this case, however, is which final results published by Commerce removed the suspension of liquidation for L.F.I’s entries—the Final Results published on September 14, 2011; or the Amended Final Results published on November 10, 2011.
As CBP outlined in HQ H114055, dated November 27, 2012, the Court of International Trade in Mazak Corp. v. United States, 659 F. Supp. 2d 1352 (Ct. Int’l Trade 2009), provides clarification regarding the impact of amendments published by Commerce after publication of final results. In Mazak, Commerce initially published its final results in the Federal Register after conducting an antidumping duty administrative review; in the final results, Commerce assigned to the plaintiff, the China-wide antidumping duty rate. Id. at 1361. Thereafter, Commerce published an amendment to the final results to correct errors for specific antidumping duty rates of individual companies; no changes were made to the China-wide antidumping duty rate. Id. at 1360-61. The Court concluded that because the amendment to the final results did not change the Plaintiff’s antidumping duty rate, the final results constituted notice of removal of suspension, which triggered the six-month liquidation period for the plaintiff. Id. at 1362. We held that the publication of final results of the administrative review published by Commerce will trigger the commencement of the six-month liquidation period unless amendments are published that affect the rate assessed for that entry. If the rate is amended, then publication of the applicable amendment in the Federal Register will trigger the six-month liquidation period for the affected parties. See HQ H114055 (Nov. 27, 2012).
In the instant case, the suspension of L.F.I’s entries lifted when Commerce published the amended final results of the administrative review for certain respondents for the antidumping order and period at issue. See Certain Preserved Mushrooms From the People’s Republic of China: Amended Final Results of Antidumping Duty Administrative Review, 76 Fed. Reg. 70,112 (Nov. 10, 2011). The amended final results corrected a ministerial error in which Commerce applied the incorrect programming language regarding the cost of metal lids for tin can products. Id. The amended final results lowered Ayecue Liaocheng’s antidumping duty rate, from 84.55 percent to 76.12 percent. In line with HQ H114055, because the amended final results affected the rate assessed for the entries at issue, the publication of the amended final results, triggered the six-month liquidation period for Ayecue Liaocheng. Subsequently, on November 25, 2011, Commerce issued liquidation instructions in Message No. 1329307, which state “the notice of the lifting of suspension of liquidation for entries of subject merchandise . . . occurred with the publication of the amended final results of administrative review (76 FR 70112, 11/10/2011).” CBP properly liquidated the entries in accordance with Message Number 1329307, which directed CBP to liquidate the merchandise manufactured by Ayecue Liaocheng, and exported by Ayecue International and assess an antidumping liability equal to 76.12 percent of the entered value. The Port then liquidated all eight entries on April 20, 2012, before the end of the six-month period required to liquidate entries that commenced when suspension lifted on November 10, 2011. See 19 U.S.C. § 1504(d). Therefore, L.F.I’s entries did not liquidate by operation of law pursuant to 19 U.S.C. § 1504(a) as it asserts.
L.F.I argues that the suspension of liquidation with respect to the entries under protest, was lifted when Commerce published its final results of antidumping duty administrative review on September 14, 2011. See Certain Preserved Mushrooms From the People’s Republic of China: Final Results of Antidumping Duty Administrative Review and Rescission in Part, 76 Fed. Reg. 56,732 (Sept. 14, 2011). Accordingly, L.F.I. asserts that CBP had until March 14, 2011 to timely liquidate the entries, and that neither the amended final results nor the liquidation instructions, extended that time frame. L.F.I cites Am. Signature, Inc., v. United States, 598 F.3d 816 (Fed. Cir. 2010), to assert that Commerce failed to amend its final results within the allowable 30 day judicial review period, making the amended results null and void. However, Commerce, not CBP, is required to determine the rate of antidumping duty to be assessed and publish final results and liquidation instructions. CBP’s ministerial role is to follow the liquidation instructions and to compute the duty by applying the antidumping duty rate set by Commerce to the appraised value as determined by CBP. See Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977. Additionally, 19 U.S.C. § 1514(a) states that only decisions made by CBP are protestable. Accordingly, CBP acted in its ministerial capacity when applying Commerce’s instructions and whether or not the amended results were timely issued by Commerce, is not protestable.
HOLDING:
Based on the above discussion, L.F.I’s entries were properly liquidated and did not deem liquidate by operation of law. Accordingly, protest 4601-12-102091 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