PRO-2-02; LIQ-4-01; LIQ-11 RR:CTF:ER
W231301 RDC
Bureau of Customs and Border Protection
Port Director
1624 East Seventh Avenue, Suite 101
Tampa, FL 33605
Att: Carol A. Rucker
RE: Protest number 1801-05-100033
Dear Port Director:
The above-referenced Protest was forwarded to this office for further review and received on 2/9/2006.
FACTS:
The protestant, Citrosuco North America, Inc. (North America) is the importer of record for the two protested entries of frozen concentrated orange juice (FCOJ), which were assessed 1.96 percent antidumping (AD) duty per AD case 351-605. In the Notice of Initiation of Antidumping Duty Investigation, Frozen Concentrated Orange Juice From Brazil, AD case 351-605, the product covered by the investigation was described as: “FCOJ in a highly concentrated form for transport and further processing, sometimes referred to as frozen concentrated orange juice for manufacturing . . . .” 51 Fed. Reg. 20, 321, 6//4/1986.
By Federal Register Notice, the Department of Commerce (DOC), published its Final Determination of Sales at Less Than Fair Value with regard to FCOJ from Brazil, antidumping (AD) case 351-605 (52 Fed. Reg. 8,324, 3/17/1987). In part this Notice stated, “The United States Customs Service shall require a cash deposit or the posting of a bond equal to the estimated weighted-average amount by which the foreign market value of the merchandise subject to this investigation exceeds the United States price as shown in the table below. This suspension of liquidation will remain in effect until further notice. . . . .
Manufacturer/producer/exporter Margin percentage
Citrosuco Paulista, S.A. 1.96.
Sucocitrico Cutrale, S.A. 1 0
All Others 1.96.”
On 10/21/1991, the DOC published a Notice of Final Results and Termination in Part of Antidumping Duty Administrative Review; Revocation in Part of the Antidumping Duty Order, with respect to AD case 351-605 (56 Fed. Reg. 52,510). That notice, with respect to producers and / or exporters, stated in part: “The Department has revoked the antidumping duty order with respect to four firms: . . . . Citrosuco Paulista S.A. . . . .” Message number 2360111, dated 12/26/1991, issued to the Customs ports contained DOC’s instructions with regard to the partial revocation of the AD duty order, case 351-605, and provided in pertinent part: “The Department has revoked the following companies from the antidumping duty order effective October 21, 1991. Shipments from these producers/exporters should no longer be suspended from liquidation as of that date: Citrosuco Paulista (351-605-001).”
On 6/14/2002, the DOC published a Notice of final results of antidumping duty administrative review for AD case 351-605 (67 Fed. Reg. 40,913). In pertinent part that Notice stated:
“Cash Deposit Requirements
The following deposit requirements will be effective upon publication of this notice . . . the cash deposit rate for all other manufacturers or exporters will continue to be 1.96 percent . . . .”
The protestant has supplied a translation of the “Minutes of the Special Meeting of Shareholders held on April 30, 2004.” These minutes state that on 4/30/2004, the board of directors of Citrosuco Paulista S.A. (Paulista) approved the merger of this company into “Fischer S/A –” (Fischer Agropecuária). The new corporation was named “Fischer S/A – Agroindustria.” The entry summaries for the two protested entries reflect that the subject FCOJ was entered by North America on 7/23/2004, and the country of origin was Brazil. The exporter / shipper was Fischer S/A Agroindustria. No antidumping case was included on the summaries, nor was AD duty deposited. According to the protestant, it advised CBP in December 2004, that Paulista was now named “Fischer S/A – Agroindustria” (Fischer Agroindustria). North America states that it advised CBP several times of this “name change.”
On 3/7/2005, CBP sent CF 29s, Notices of Action, advising North America that the FCOJ imported with the two protested entries was subject to AD case 351-605-000 and cash deposits of 1.96 percent ad valorem was due on the entries. No deposit was received from North America. CBP issued the DOC instructions contained in message number 5180205 on 6/29/2005, with respect to AD case 351-605, which advised that since no requests for administrative review of AD case 351-605 had been received, the ports were to “[l]iquidate all entries for all firms” entered between 5/1/2004, and 8/4/2004, and assess antidumping duties at the cash deposit . . . in effect on the date of entry. . . .
Pursuant to a Petition from domestic producers, the DOC commenced AD duty investigation, case number A-351-840, with regard to two forms of FCOJ (see Notice of Initiation of Antidumping Duty Investigation: Certain Orange Juice from Brazil, (70 Fed. Reg. 7,233, 2/11/2005)). At the direction of CBP, on 2/24/2005, Fischer requested a Changed Circumstances administrative review, per 19 C.F.R. § 351.216, of the DOC to determine that Fischer was the successor-in-interest to Citrosuco Paulista with regard to AD case 351-605. Subsequently, AD case 351-605 was revoked (see Notice of Revocation of Antidumping Duty Order, Case 351-605 (70 Fed. Reg. 19,416, 4/13/2005)).
In the Notice of Request for Information and Extension of Time: Certain Orange Juice From Brazil, AD case 351-840, the product under investigation was described as: “certain orange juice for transport and/or further manufacturing, produced in two different forms: (1) Frozen orange juice in a highly concentrated form, sometimes referred to as frozen concentrated orange juice for further manufacturing (FCOJM); and (2) pasteurized single-strength orange juice which has not been concentrated, referred to as Not-From-Concentrate (NFC).” (70 Fed. Reg. 3,510, 1/25/2005).
In the Notice of Preliminary Determination of Sales at Less Than Fair Value, Postponement of Final Determination, AD case 351-840, (70 Fed. Reg. 49,557, 8/24/2005), the DOC said the following: “ . . . at the time of the filing of the petition, there was an existing antidumping duty order on FCOJ from Brazil. Therefore, the scope with regard to FCOJ covers only FCOJ produced and/or exported by those companies which were excluded or revoked from the pre-existing antidumping order on FCOJ from Brazil as of December 27, 2004. . . . Regarding Citrosuco [Paulista S.A.] . . . [b]ased on all the evidence reviewed, we find that Fischer operates as the same business entity as Citrosuco [Paulista S.A.]. Thus, we find that Fischer is the successor-in-interest to Citrosuco [Paulista S.A.] and, as a consequence, its exports of FCOJ are subject to this proceeding.” (70 Fed. Reg. 49,557,59.)
The DOC requested information regarding the Citrosuco Paulista S.A. to Fischer name change from the protestant pursuant to the AD case 351-840 investigation. The protestant says it withdrew the request for a Changed Circumstances administrative review because the DOC requested the name change information for AD case 351-840 and AD case 351-605 was revoked. On 9/26/2005, Citrosuco North America was advised by two additional Notices of Action that the protested entries were to be liquidated including a 1.96 percent AD duty rate plus interest. The protested entries were liquidated on 10/21/2005 per DOC instruction number 5180205 (6/29/2005). The instant protest was filed on 12/21/2005, by Citrosuco North America, Inc.
An electronic mail message date 9/19/2005 and sent to the port from the DOC’s International Trade Administration, Import Administration, Customs Unit Liaison, in response to the port’s query on the instant protest states the following:
[T]he effective date that Citrosuco underwent a corporate name change and became Fischer differs from the effective date of the successor-in-interest determination for Customs purposes, i.e., these are two different legal points. The effective date Citrosuco became Fischer pertains to the date on which as a legal and factual matter Citrosuco underwent certain corporate changes to become Fischer. That effective date is different from the date Citrosuco’s cash deposit rate can be applied to entries from Fischer. According to our practice, the change in the cash deposit rate is prospective in nature, i.e., after the successor in interest determination is published in a final determination. If two entries came in prior to our successor-in-interest determination, the only way to change the rate applied to those entries is through a administrative review. Fischer did not request a [changed circumstance review or admin[istrative] review in FCOJ from Brazil, so those entries retain the all others rate. Moreover, our successor in interest determination was made in the context of the COJ from Brazil proceeding, while we might accord that determination some weight in the context of another proceeding, we could only do so in the context of an admin[istrative] review. Therefore, . . . the fact that we made the successor in interest determination in FCOJ from Brazil” is irrelevant to the COJ from Brazil case. This message concluded by stating that Fisher is subject to the “all others” rate for the two entries.
ISSUE:
Was liquidation of the subject entries with 1.96 percent AD duty imposed consistent with the DOC’s instructions?
LAW AND ANALYSIS:
While both CBP and Commerce play a part in the enforcement of the antidumping laws, their roles are separate and distinct. It is well settled that when assessing and collecting antidumping duties CBP merely follows Commerce's instructions (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, 957 F. Supp. 245 (1997); and American Hi-Fi International, Inc. v U.S., 19 C.I.T. 1340 (Ct. Int'l Trade 1995)). In Mitsubishi Electronic America Inc. v. United States, supra, the CAFC held that “CBP has a merely ministerial role in liquidating antidumping duties” (44 F.3d 973, 977). CBP simply takes the dumping margin determined by Commerce and applies it to the entries as directed by Commerce's instructions.
Based upon CBP’s obligation to simply follow Commerce’s instructions when administering the AD statutes, the liquidation of an entry assessing the dumping duties in accordance with the instructions of the Department of Commerce, is not generally protestable. What is protestable per 19 U.S.C. § 1514 is whether CBP correctly applied the DOC’s instructions. Per 19 U.S.C. § 1514 certain enumerated CBP decisions, including the liquidation of an entry, become “final and conclusive upon all persons” including CBP and the importer, unless some specified action is taken (§ 1514(a)). Among those actions specified by § 1514 which prevent this finality of a liquidation is the proper filing of a protest (§ 1514(a)). The protestant, Citrosuco North America Inc. (North America), protests the assessment of AD duty at the liquidation of two entries. Since, in this case, the imposition of AD duty at the liquidation of the protested entries were decisions made by CBP, these actions are protestable. With regard to the CBP decisions protested, the instant protest was timely filed, i.e., within 90 days of the liquidation of the entry (19 USC § 1514(c)(3)(B)). The subject entries were liquidated on 910/21/2005; this protest was filed on 12/21/2005. Accordingly, the instant protest is timely.
North America contends that, per 19 U.S.C. § 1675(d)(3), any entries of FCOJ entered after date of revocation against Paulista in case 351-605, i.e., 10/21/1991, including the two protested here, must be liquidated without regard to AD duty. However, North America’s arguments that do not relate to CBP decisions, i.e., the rate of AD duty and the liquidation of the two protested entries, are outside of CBP’s authority to consider or decide. North America’s contention that the AD duty order for AD case A-351-605 was revoked as to Paulista in 1991 and therefore Fischer, as a successor-in-interest to Paulista S.A., was not subject to AD duty per case A-351-605 does not involve the rate of AD duty imposed or the liquidation of the entries. Whether or not, for purposes of AD case 351-605, Fischer is successor-in-interest to Paulista S.A. is not for CBP to decide. Further, the e-mail from the DOC quoted above in pertinent part, states that the “successor in interest determination was made in the context of the COJ from Brazil proceeding, while we might accord that determination some weight in the context of another proceeding, we could only do so in the context of an admin[istrative] review.”
We note that the DOC did determine that Fischer is successor-in-interest to Paulista S.A. with regard to AD case 351-840. However, absent instructions from Commerce to CBP advising CBP that it had determined that Fischer is successor-in-interest to Paulista S.A. for purposes of case A-351-605, CBP cannot assume such is the case. Consequently, CBP could not conclude that Fischer was the successor to Paulista prior to 8/24/2005, when the DOC made that that determination. Thus, when the FCOJ was entered on 7/23/2004, and when CBP requested the AD duty to be deposited on 3/7/2005, i.e., prior to the successorship determination by Commerce, CBP was without authority to recognize Fischer was the successor-interest to Paulista. The DOC’s email also states, that “the change in the cash deposit rate is prospective in nature, i.e., after the successor in interest determination is published in a final determination.”
Further, the argument that, since Fischer was subject to `which includes only those companies ‘revoked or excluded from’” AD case 351-605, it cannot also be subject to AD case 351-605 is outside the scope of CBP’s authority to decide. The DOC must have supplied CBP with instructions to this effect before CBP could have taken action consistent with this determination. No such instructions were supplied. Northern American also contends that “Fischer had no other legal remedy to alert Customs to the name change.” According to the DOC, Fischer’s method of advising CBP of its name change was to request a Changed Circumstance Review or Administrative Review of AD case 351-605. Such a request should have been made when Citrosuco Paulista S.A., became “Fischer S/A – Agroindustria,” i.e., 4/30/2004. In addition, since the administration of the antidumping regime is within Commerce’s authority, Fischer needed to advise the DOC of the change and the DOC then would have issued appropriate instructions to CBP. Absent such instructions, CBP is without authority to determine if Fischer was successor to Paulista. The protestant makes other arguments that do not involve CBP decisions. Fischer states that a changed circumstance review was not required and that in fact, Fischer would have been prevented from requesting such a review because there was already a pending sunset review in case A-351-605.
We note that the circumstances whereby Citrosuco Paulista S.A. became Fischer did not constitute a mere name change though the protestant refers to its “name change” throughout its submitted documents. The provided certified translation of the corporate minutes evidence that on 4/30/2004, prior to the entries of the subject FCOJ, the board of directors of Citrosuco Paulista S.A., approved the merger of this company into “Fischer S/A – Agropecuária.” Thus, the corporate entity named Citrosuco Paulista S.A. ceased to exist on 4/30/2004. Whatever assets, rights or obligations this corporation had belonged to another corporate entity named Fischer S/A – Agropecuária subsequent to 4/30/2004. Finally, the entity resulting from the combination of Citrosuco Paulista S.A. and Fischer S/A – Agropecuária was named “Fischer S/A – Agroindustria.” Since a corporate entity ceased to exist, i.e., Citrosuco Paulista S.A. and a new entity was formed, Fischer S/A – Agroindustria, it is clear that no mere name change occurred, and the action constituted a merger.
The protestant argues that “CBP’s assignment of the all others rate of 1.96 percent was arbitrary.” Per DOC instructions number 5180205, 6/29/2005, CBP was directed to liquidate entries between 5/1/2004 and 8/4/2004 of FCOJ and subject to AD case 351-605 at the case deposit rate. Message number 0287214, 10/13/2000, regarding AD case 351-605 instructed CBP to impose a cash deposit rate of 1.96 percent for manufacturers / exporters that were not assigned a specific rate. On 6/14/2002, the DOC published a Notice of final results of antidumping duty administrative review for AD case 351-605 (67 Fed. Reg. 40,913). In pertinent part that Notice stated:
“Cash Deposit Requirements
The following deposit requirements will be effective upon publication of this notice . . . the cash deposit rate for all other manufacturers or exporters will continue to be 1.96 percent . . . .” The entry summaries for the two protested entries reflect that the exporter / shipper was Fischer S/A Agroindustria and that no AD duty was deposited. Absent other subsequent instructions, CBP was to impose a cash deposit rate of 1.96 percent for manufacturers / exporters that were not assigned a specific rate. Since no further instructions were received and Fischer was not assigned a specific rate, the “all others” rate of 1.96 percent ad valorem was applicable.
As required, CBP was following Commerce’s instructions when it assessed AD duty against the protested entries. The entry summaries for the two protested entries stated that the imported FCOJ was exported or produced by Fischer and the country of origin was Brazil. Therefore, CBP determined that this FCOJ was subject to AD case 351-605 per its Notice of Final Determination of Sales at Less Than Fair Value, case A-351-605 (52 Fed. Reg. 8,324, 3/17/1987). This Notice directed that AD case 351-605 imposed AD duty based on the “manufacturer/producer/exporter” of the FCOJ. Also, because Fischer was the exporter and shipper of the FCOJ imported with these entries, CBP was following the DOC’s instructions when it determined that the DOC’s Notice that AD case 351-605 was revoked with regard to manufacturer / producer / exporter Paulista (56 Fed. Reg. 52,510, 10/21/1991) was irrelevant to the protested entries. (See also Message number 236011, 12/26/1991).
HOLDING: Liquidation of the subject entries with 1.96 percent AD duty imposed per AD case 351-605 was consistent with the DOC’s instructions and the protest is DENIED IN FULL.
In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 claim in accordance with the decision must be accomplished prior to mailing of 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.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division