LIQ4-01
OT:RR:CTF:ER H114055 GGK
Port Director
U.S. Customs and Border Protection
Boston Service Port
10 Causeway Street - Room 603
Boston, MA 02222
Attn: Thomas Brigham
RE: World Source Trading Inc.: Application for further review and Protest number 0401-08-100118
Dear Port Director:
This protest review decision is in response to the application for further review (“AFR”) for Protest number 0401-08-100118 (“protest”), filed by the protestant, World Source Trading Inc. (“World Source”), on June 26, 2008. This office received the protest for further review on July 8, 2010.
FACTS:
On August 2, 2004, World Source entered a shipment of wooden bedroom furniture from the People’s Republic of China (“PRC”) and filed entry number xxx-xxxx283-8. Wooden bedroom furniture from the PRC is subject to Antidumping Duty Order A-570-890. See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Wooden Bedroom Furniture From the People’s Republic of China, 70 Fed. Reg. 329 (Jan. 4, 2005) (“Antidumping Duty Order”). At the time of entry, Customs and Border Protection (“CBP”) collected cash deposits to cover estimated antidumping duties based on the PRC-wide antidumping duty deposit rate of 198.08%. On March 28, 2008, CBP liquidated the entry pursuant to instructions from the Department of Commerce (“Commerce”) and assessed antidumping duties at a higher rate pursuant to Commerce Message Number 8024215 (Jan. 24, 2008). This increased duty assessment stemmed from Commerce’s determination of a higher PRC-wide antidumping duty rate of 216.01% and from World Source’s failure to submit the required reimbursement certificate. Thereafter, on June 26, 2008, World Source filed the instant protest.
Commerce assessed a higher antidumping duty rate for the PRC-wide entity after it conducted the first administrative review for wooden bedroom furniture. The first administrative review commenced on March 7, 2006. See Notice of Initiation of Administrative Review of the Antidumping Duty Order on Wooden Bedroom Furniture from the People’s Republic of China, 71 Fed. Reg. 11,394 (Mar. 7, 2006). Amended Final Results was published in the Federal Register on August 22, 2007. See Amended Final Results of Antidumping Administrative Review and New Shipper Reviews: Wooden Bedroom Furniture From the People’s Republic of China, 72 Fed. Reg. 46,957 (Aug. 22, 2007) (“Amended Final Results”). In the Amended Final Results, Commerce increased the PRC-wide antidumping duty rate from 198.08% to 216.01%. After publication of the Amended Final Results, Commence published a Second Amended Final Results on November 7, 2007. See Second Amended Final Results of Antidumping Duty Administrative Review: Wooden Bedroom Furniture From the People’s Republic of China, 72 Fed. Reg. 62,834 (Nov. 7, 2007) (“Second Amended Final Results”). The Second Amended Final Results did not change or impact the antidumping duty rate for the PRC-wide entity. Commerce issued liquidation instructions to CBP on January 24, 2008. See Message number 8024215 (Jan. 24, 2008). In its instructions, Commence noted that suspension of liquidation for entries of Chinese wooden bedroom furniture made during the period between June 24, 2004 through December 20, 2004, and December 28, 2004 through December 31, 2005, lifted with the publication of the Second Amended Final Results. In addition, Commerce instructed CBP to apply the PRC-wide entity antidumping duty rate of 216.01% to the entries impacted by the instructions.
Upon receiving these instructions from Commerce, CBP liquidated World Source’s entry by applying the 216.01% antidumping rate for the PRC-wide entity on March 28, 2008. Moreover, because World Source failed to provide the requisite reimbursement certificate prior to liquidation and posting of the bulletin notice of liquidation, CBP doubled the rate of antidumping duties.
In protesting CBP’s liquidation of the entry, World Source first argues that the entry deemed liquidated by operation of law on February 22, 2008. In addition, World Source forwards the argument that CBP should not presume that a reimbursement of antidumping duties occurred in this case because the company failed to file a reimbursement certificate prior to liquidation. Moreover, World Source argues that liquidation is not final until after the adjudication of a protest; therefore, the reimbursement certificate submitted as a part of the protest must be considered and the doubling of antidumping duties reversed. In response to World Source’s protest arguments, the Boston Service Port (“Port”), argues that reimbursement certificates must be filed prior to the posting of liquidation in order to be timely. The Port is silent with respect to the issue of deemed liquidation.
ISSUE:
1. Whether the entries at issue deemed liquidated by operation of law.
2. Whether CBP properly presumed reimbursement and doubled the assessed antidumping duties.
LAW AND ANALYSIS:
As an initial matter, we note that a claimant may protest the rate and amount of duties chargeable and the liquidation of an entry by CBP pursuant to 19 U.S.C. § 1514(a)(2), (5). In order for CBP to consider the merits of a protest, however, the protest must be filed within the statutory timeframe. See 19 U.S.C. § 1514(c)(3). Here, World Source’s goods entered on August 2, 2004; therefore, the 90-day protest filing deadline is applicable. See 19 U.S.C. § 1401 note (2006); Pub. L. No. 108-429, § 2108, 118 Stat. 2434, 2598 (2004). Since World Source filed its protest on June 26, 2008, which is the 90th day after the date of liquidation on March 28, 2008, the protest is timely.
CBP’s regulations require that further review is only granted in certain circumstances. See 19 C.F.R. § 174.24. We find that World Source’s protest raises a question regarding what constitutes the official notice of lifting of suspension for the entries at issue, which has not been the subject of a Headquarters ruling or court decision at the time of submission. See 19 C.F.R. § 174.24(b). Moreover, the issue also involves the interpretation of a court decision. See 19 C.F.R. § 174.26(b)(1)(iv). Specifically, World Source is protesting CBP’s alleged failure to timely liquidate an entry, pursuant to 19 U.S.C. § 1504(d). See HQ 229557 (Aug. 27, 2002) (stating that an importer may protest the failure of CBP to follow a Commerce instruction under 19 U.S.C. § 1514). Therefore, we will conduct our further review of the protest.
World Source asserts that the entry at issue deemed liquidated because CBP failed to liquidate the entry within six months after receiving notice of the removal of suspension from Commerce. CBP is obligated to suspend the liquidation of entries once an affirmative preliminary determination is made pursuant to 19 U.S.C. § 1673b(d)(2). Once suspension is removed, 19 U.S.C. § 1504(d) requires CBP to liquidate the entry within six months after receiving notice of lifting of the suspension, unless liquidation is properly extended. All entries not liquidated with this six-month timeframe, and not properly extended, are deemed liquidated at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record. See 19 U.S.C. § 1504(d). Stated differently, entries are deemed liquidated if the following occurred: 1) the suspension of liquidation that was in place was removed; 2) CBP received notice of the removal of suspension; and 3) CBP failed to liquidate the entries at issue within six months of receiving such notice. Koyo Corp. v. United States, 497 F.3d 1231, 1236 (Fed. Cir. 2007).
Liquidation of World Source’s entry was suspended by statute pending the outcome of Commerce’s first 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 (“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. International Trading, 281 F.3d at 1277. At issue in this case, however, is which final results published by Commerce removed the suspension of liquidation for World Source’s entry—the Amended Final Results published on August 22, 2007; or the Second Amended Final Results published on November 7, 2007.
The Court of International Trade (“CIT”) 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. Id. at 1360. In the final results, Commerce assigned to the plaintiff, the PRC-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 PRC-wide antidumping duty rate. Id. at 1360-61. The CIT 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. Therefore, 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.
CBP received notice that the suspension of liquidation for World Source’s entry was lifted when Commerce published the Amended Final Results in the Federal Register on August 22, 2007. The Amended Final Results raised the applicable antidumping duty rate for this entry, or the PRC-wide antidumping duty rate, from 198.08% to 216.01%. Although Commerce subsequently published the Second Amended Final Results, the PRC-wide antidumping duty rate assessed in the Amended Final Results was not changed by the Second Amended Final Results. Therefore, since World Source’s entry was subject to the PRC-wide antidumping duty rate, the Amended Final Results represents the official notice of lifting of suspension. Further, in litigation on this same administrative review, A.P. Industries Inc. v. United States, Court No. 08-0090, the CIT stated in an Order dated April 14, 2008, that:
notice of lifting of suspension of liquidation of entries of wooden bedroom furniture from the People’s Republic of China (“PRC”) during the periods June 24, 2004 through December 20, 2004 and December 28, 2004 through December 31, 2005, for the PRC entity, occurred with the publication of the Amended Final Results of Antidumping Duty Administrative Review, 72, Fed. Reg. 46957 (Aug. 22, 2007)….
Consequently, World Source’s entry deemed liquidated at the rate of duty, value, quantity, and amount of duties asserted at the time of entry by the importer of record on February 22, 2008, which is six months from the date that Commerce published the Amended Final Results in the Federal Register.
As a final note, we will not address the arguments raised by World Source regarding the late filing of its reimbursement certificate. By finding that the entry deemed liquidated on February 22, 2008, CBP must apply the rate of duty asserted at the time of entry by the importer of record. See 19 U.S.C. § 1504(d). Consequently, the arguments raised by World Source regarding the late filing of its reimbursement certificate are moot. See, e.g., HQ 225121 (March 30, 1994) (holding that there is no need to address whether the assessment of additional antidumping duties due to a missing reimbursement certificate was proper because the entries deemed liquidated under 19 U.S.C. § 1504).
HOLDING:
The protest is GRANTED due to the deemed liquidation of the underlying entry at the rate of duty, value, quantity, and amount of duties asserted at the time of entry. In addition, World Source’s protest arguments regarding its failure to file a reimbursement certificate are moot.
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