LIQ 4-01
OT:RR:CTF:ER
H173819 PTM
Port Director
Savannah Service Port of Entry
1 E. Bay St.
Savannah, GA 31401
ATTN: Jason M. Todd, Import Specialist
RE: Further Review of Protest 1703-2011-100194 filed by Coaster Corporation of America, alleging that its entry deem liquidated.
Dear Port Director,
We are writing in response to above-referenced protest and application for further review (“AFR”) forwarded to our office on July 5, 2011. Our response follows.
FACTS:
On March 8, 2008, Coaster Corporation of America (“Coaster Corp.”) filed entry number UPS0XXXX164 on an importation of wooden bedroom furniture from the People’s Republic of China (“PRC”), subject to antidumping duties (“ADD”). Coaster Corp. asserted an ADD rate of 7.24% at the time of entry under ADD Case No. A-570-890-095. The manufacturer is listed as “Dongguan Chusan Wood Products, Ltd.” on U.S. Customs and Border Protection (“CBP”) form 7501.
The antidumping duty order underlying this case went into effect on January 4, 2005. See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Wooden Bedroom Furniture from the People's of Republic of China, 70 Fed. Reg. 329 (January 4, 2005) ("AD Order"). In the AD Order, the U.S. Department of Commerce (“Commerce”) assigned Dongguan Chusan Wood Products Company an ADD separate rate of 6.65%. Id. The AD order instructed CBP to suspend liquidation of all entries of the subject merchandise. Id. On August 18, 2010, Commerce published, Wooden Bedroom Furniture from the People’s Republic of China: Final Results and Final Rescission in Part in the Federal Register. See 75 Fed. Reg. 50,992. For the period of review from January 1, 2008 through December 31, 2008, Commerce determined that certain companies had not demonstrated their eligibility for separate rate status during the administrative review, including Dongguan Chusan Wood Products, Ltd., and therefore, treated it as part of the PRC-wide entity. Id. On August 30, 2010, Commerce issued Administrative Message No. 0242302, instructing CBP that Dongguan Chusan Wood Products Co. was no longer eligible for a separate rate and was therefore, subject to the PRC-wide rate of 216.01% ad valorem. On September 16, 2010, Commerce issued Administrative Message No. 0259301 with liquidation instructions for wooden bedroom furniture from the PRC exported by PRC-wide entity for the period of January 1, 2008, to December 31, 2008. The message instructed CBP to liquidate all entries during the period of review at the PRC wide rate of 216.01% of the entered value.
On February 18, 2011, CBP liquidated the subject entry and assessed the PRC-wide ADD rate of 216.01%. On March 10, 2011, Coaster Corp. filed the instant protest and AFR. The protestant alleges that the entry must have liquidated by operation of law by the end of February 17, 2011 at the rate asserted by the importer. The port states that the entry had to liquidate on or before February 18, 2011, the six-month anniversary of the publication of the Final Results and Final Rescission in Part in the Federal Register on August 18, 2010, and the liquidation was therefore timely.
ISSUE:
Whether the subject entry liquidated by operation of law.
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed within 180 days from the date of liquidation. See 19 U.S.C. §1514(c)(3)(A). The date of liquidation was February 18, 2011, and the protest was filed on March 10, 2011, 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). We agree that further review is warranted as the protest involves questions of law or fact that at the time of filing, had not previously been ruled upon. Specifically, the issue of whether liquidation occurred by operation of law in this instance has not previously been ruled upon. Accordingly, the criteria for further review by this office are satisfied per 19 C.F.R. §§ 174.24(b) and 174.26(b)(1)(iv).
CBP is obligated to suspend the liquidation of entries once Commerce makes an affirmative preliminary determination of dumping 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. The statute provides:
(d) Removal of suspension
Except as provided in section 1675(a)(3) of this title, when a suspension required by statute or court order is removed, the Customs Service shall liquidate the entry, unless liquidation is extended under subsection (b) of this section, within 6 months after receiving notice of the removal from the Department of Commerce, other agency, or a court with jurisdiction over the entry. Any entry (other than an entry with respect to which liquidation has been extended under subsection (b) of this section) not liquidated by the Customs Service within 6 months after receiving such notice shall be treated as having been liquidated at the rate of duty, value, quantity, and amount of duty asserted by the importer of record or (in the case of a drawback entry or claim) at the drawback amount asserted by the drawback claimant.
Thus, all entries not liquidated within this six-month timeframe, and not properly extended, are deemed liquidated at the rate of duty, value, quantity, and amount of duty asserted by the importer of record. 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).
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. International Trading, 281 F.3d at 1277. In this case, the Federal Register notice containing the final results for the subject entry was published on August 18, 2010. See Wooden Bedroom Furniture From the People’s Republic of China: Final Results and Final Rescission in Part, 75 Fed. Reg. 50,992. This gave notice to CBP that suspension of liquidation had lifted and CBP had six months to liquidate.
CBP has consistently calculated statutory deadlines starting the day after the triggering event and including the entirety of the deadline day. For example, the protest statute, 19 U.S.C. §1514, provides that protests must be filed “within” prescribed time periods. In HQ H114055 (Nov. 27, 2012), we determined that a protest filed on the 90th day of a 90-day deadline was timely, even though the statute required the request to be filed “within ninety days.” This interpretation permits the party subject to a statutory time limit to avail itself of the entire time limit set forth in the statute.
Moreover, the courts have also interpreted “within” in the same manner. The statute that sets forth the time limits for bringing civil suit in the U.S. Court of International Trade (“CIT”), 28 U.S.C. §2636, provides, in relevant part:
§ 2636. Time for commencement of action
(a) A civil action contesting the denial, in whole or in part, of a protest under section 515 of the Tariff Act of 1930 [19 USCS § 1515] is barred unless commenced in accordance with the rules of the Court of International Trade--
(1) within one hundred and eighty days after the date of mailing of notice of denial of a protest under section 515(a) of such Act [19 USCS § 1515(a)]; or
(2) within one hundred and eighty days after the date of denial of a protest by operation of law under the provisions of section 515(b) of such Act [19 USCS § 1515(b)].
(emphasis added). Thus, the statute provides that a civil action must be brought “within one hundred and eighty days” of the date of mailing of notice of denial of a protest or “within one hundred and eighty days” after the date of denial of a protest by operation of law. The Court’s rules provide that the one hundred and eighty day clock does not run until the day after the triggering event, and includes the last day of the period. Rule 6 of the CIT sets forth rules for computing time. It states, in relevant part:
Computing Time: The following rules apply in computing any time period specified in these rules, any court order, or any statute that does not specify a method of computing time.
Period State in Days or a Longer Unit. When the period is stated in days or a loner unit of time:
exclude the day of the event that triggers the period;
count every day, including intermediate Saturdays, Sundays, and legal holidays; and
include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the priod continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.
(emphasis added). Similarly, Rule 26 of the Rules of Practice of the United States Court of Appeals for the Federal Circuit provides:
(a) Computing Time. The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time.
(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time:
(A) exclude the day of the event that triggers the period;
(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and
(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.
(emphasis added). The two courts have nearly identical rules with respect to the computation of time. Both rules apply to any statute that does not expressly specify a method of computing time, as is the case with 19 U.S.C. §1504(d). Furthermore, they exclude the day of the triggering event, and include the last day of the period.
Here, CBP received notice of the lifting of suspension of liquidation on August 18, 2010, with the publication of the Final Results in the Federal Register. Pursuant to 19 U.S.C. §1504(d), CBP was required to liquidate the entry within six months after receiving notice of lifting of the suspension on that date. The six month clock began to run the day after the date of the triggering event. Because the triggering event occurred on August 18, 2010, the six-month clock for liquidation began to run on August 19, 2010. Further, the six-month period included the last day of the six-month period. Thus, CBP was required to liquidate the entry by the end of February 18, 2011. Here, CBP liquidated the entry on February 18, 2011, in accordance with Commerce’s Administrative Message No. 0259301 (Sept. 16, 2010). Because CBP timely liquidated the entry, the entry did not deem liquidate by operation of law.
Coaster Corp. argues that the liquidation at the PRC-wide ADD rate was improper because the entry should have deemed liquidated on February 17, 2011, at the ADD rate asserted of 6.65%. In support of its position, Coaster Corp. relies on the language of 19 U.S.C. §1504(d) that requires CBP to liquidate entries “within six months after receiving notice of the removal from the Department of Commerce.” See 19 U.S.C. §1504(d). Coaster states that the plain meaning of the term “within” means “inside” or “before the end of.” See Letter in Support of Protest (March 9, 2011) at 2, citing Webster’s Ninth New Collegiate Dictionary at 1355 (1988). Coaster argues that in applying the plain meaning of the word “within,” that CBP must have liquidated the entry inside of or before the end of the six month mark of February 18, 2011. Coaster states that, because CBP did not liquidate the entry by February 17, 2011, it deem liquidated by operation of law on February 18th. For the reasons explained above, Coaster Corp has not properly calculated this deadline.
HOLDING:
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 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