LIQ 4-01
OT:RR:CTF:ER H311377 RLP
Center Director
Consumer Products and Mass Merchandising
Center of Excellence and Expertise
157 Tradeport Dr.
Atlanta, GA 30354
Attn: Helen Bechard
RE: Application for Further Review of Protest Number 550618100001; Wooden Bedroom Furniture from the People’s Republic of China under Antidumping Order 570-890.
Dear Center Director:
Please see our decision regarding the Application for Further Review (“AFR”) of Protest Number 550618100001, filed on behalf of T&J International, LLC, d/b/a Lime Tree Sourcing (“Lime Tree”) on February 5, 2018, which contests the antidumping duties (“ADD”) and interest assessed on an entry of wooden bedroom furniture.
FACTS:
On June 3, 2015, Lime Tree entered merchandise identified as wooden bedroom (“WBF”) furniture from the People’s Republic of China (“China”). Per the manufacturing identification (“MID”) codes listed on entry no. XXXXXXX6241, the merchandise on Line 1 was manufactured by Shanghai Jian Pu Import & Export Co., Ltd. (“Shanghai Jian Pu”). The merchandise on Line 3 was manufactured by Shenzhen Forest Furniture Co. Ltd. (“Shenzhen Forest”). Both entry lines were marked as subject to an antidumping duty order on WBF from China, with a specific case number listed for merchandise manufactured by Shanghai Jian Pu (A-570-890-122) and Shenzhen Forest (A-570-890-054). See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Order: Wooden Bedroom Furniture from the People’s Republic of China, 70 Fed. Reg. 329 (Jan. 4, 2005) (“Order”).
The Order issued by the U.S. Department of Commerce (“Commerce”) instructed U.S. Customs and Border Protection (“CBP”) to suspend liquidation of all entries of WBF from China that were entered, or withdrawn from warehouse, for consumption, on or after December 21, 2004. Id. Suspension was to remain in effect until CBP received notice from Commerce which lifted the suspension. Id. Commerce began conducting an administrative review for entries occurring between January 1, 2015, through December 31, 2015, including the entry at issue, which contained merchandise exported by certain listed companies. See Message No. 6088306 (March 28, 2016). Shanghai Jian Pu and Shenzhen Forest were both listed. Id. Commerce instructed CBP to continue suspending liquidation for entries subject to the administrative review, but lifted suspension for entries of merchandise exported by all other non-listed companies. Id.
Commerce rescinded the administrative review, and lifted suspension of liquidation, on September 8, 2016, for entries of merchandise exported by Shenzhen Forest. See 81 Fed. Reg. 62083. Commerce instructed CBP to liquidate all subject entries at the cash deposit rate in effect on the date of entry. Id.; Message No. 6271307 (Sept. 27, 2016). Although Commerce completed its administrative review for merchandise exported by Shanghai Jian Pu on February 15, 2017, Commerce instructed CBP to continue suspending liquidation of subject entries. See 82 Fed. Reg. 10743. Commerce determined that such entries were now subject to the China-wide antidumping duty rate. Id.; Message No. 7052301 (Feb. 21, 2017). Shanghai Jian Pu challenged Commerce’s determination at the U.S. Court of International Trade (“CIT”), leading to an injunction on liquidation of all subject entries that remained unliquidated as of February 23, 2017. See Message No. 7055308 (Feb. 24, 2017). According to the entry records in the Automated Commercial Environment (“ACE”), the protested entry remained unliquidated as of February 23, 2017.
On March 20, 2017, Commerce notified CBP that the CIT had dissolved its injunction of liquidation for entries of merchandise exported by Shanghai Jian Pu. See Message No. 7079305. Commerce instructed CBP to accordingly proceed with liquidation for the subject entries, which were subject to a duty rate of 216.01%. Id. Consequently, as of March 20, 2017, no entry lines for entry no. XXXXXXX6241 remained suspended pursuant to instructions from Commerce or a court injunction. CBP liquidated the entry on September 29, 2017. According to ACE, CBP subsequently reliquidated the entry on February 28, 2018, and again on March 1, 2018.
Lime Tree filed protest on May 22, 2018, on the basis that entry no. XXXXXXX6241 deemed liquidated. In its protest submission, Lime Tree notes the merchandise in Line 1 was imported “from manufacturer Shanghai Jian Pu,” meaning the merchandise was both manufactured and exported by Shanghai Jian Pu. Included in the protest documents are an invoice and packing list issued by Shanghai Jian Pu to Lime Tree. Lime Tree alleges that lifting of suspension for the entry occurred “on or about” April 11, 2016, with Commerce’s publication of the final results of the administrative review in 81 Fed. Reg. 21319 (Apr. 11, 2016) (we note that the publication cited by Lime Tree concerns an administrative review of WBF entered between January 1, 2014, through December 31, 2014). Lime Tree further alleges that although liquidation was subsequently re-suspended pursuant to a court injunction, the injunction was dissolved on May 12, 2017, as explained by Commerce in Message No. 7150306, issued on May 30, 2017. The message cited by Lime Tree pertains to WBF exported by Shanghai Jian Pu between January 1, 2014, and December 31, 2014.
ISSUE:
Whether Lime Tree’s entry deemed liquidated.
LAW AND ANAYLSIS:
Pursuant to 19 U.S.C. § 1514, CBP decisions are final unless a protest is timely filed against that decision in accordance with § 1514(c). See 19 U.S.C. § 1514(a). Specifically, a protest must be filed within 180 days from the date of liquidation. See 19 U.S.C. § 1514(a)(5); 19 C.F.R. § 174.12(e). Here, the entry was liquidated on September 29, 2017. Subsequently, on February 5, 2018, Lime Tree timely protested these liquidations, within 180 days of the date of liquidation. The protest was therefore filed timely. 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.” See 19 C.F.R. § 174.24(b). Specifically, the protest involves a question of law and fact concerning deemed liquidation. Accordingly, the criteria for further review is satisfied.
It is well settled that when assessing and collecting ADD, CBP’s role is merely to follow instructions from Commerce. See Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994); Fujitsu Ten Corporation of America v. United States, 21 C.I.T. 104, 107 (1997); 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. In determining whether a good is subject to ADD, “Customs, incident to its ‘ministerial’ function of fixing the amount of duties chargeable, must make factual findings to determine ‘what the merchandise is, and whether it is described in an order’ and must decide whether to apply the order to the merchandise.” LDA Incorporado v. United States, 79 F. Supp. 3d 1331, 1339 (Ct. Int’l Trade 2015). Here, Lime Tree does not dispute that entry no. XXXXXXX6241 contained merchandise within the scope of the Order. Lime Tree instead alleges untimeliness in CBP’s ministerial role of liquidating the entry.
Pursuant to 19 U.S.C. § 1504(d), CBP has six months from the date it receives notice that suspension of liquidation for an entry is lifted to effect liquidation. If CBP fails to timely liquidate the entries after receiving notice, the entries are deemed liquidated at the rate asserted by the importer of record. See Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1376 (Fed. Cir. 2002); 19 U.S.C. § 1504(a)(1)(E). In summation, “[i]n 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.” 283 F.3d at 1376. If multiple entry lines are subject to an antidumping duty order, the entry cannot be liquidated until notice that suspension is lifted is received for each affected entry line. See HQ H017002 (Oct. 31, 2011).
Notice lifting suspension of liquidation must be “unambiguous and public.” Aspects Furniture Int'l, Inc. v. United States, 42 F.4th 1366, 1370 (CAFC 2022). Publication in the Federal Register of the final results of an administrative review, that a court ordered injunction has dissolved, or that an administrative review has been rescinded, constitutes such unambiguous and public notice. Id.; Fujitsu Gen. Am., Inc., 283 F.3d at 1380; United States v. Great Am. Ins. Co. of NY, 35 C.I.T. 1130, 1158 (2011). Alternatively, Commerce may give CBP notice that suspension is lifted by issuing a message in ACE; however, it is the first in time notice which is controlling for purposes of triggering the six-month liquidation deadline. Aspects Furniture Int'l, Inc., 42 F.4th at 1371.
For entry no. XXXXXXX6241, dated June 3, 2015, liquidation of two entry lines was suspended pursuant to the Order for antidumping case no. A-570-980: Line 1, for merchandise manufactured by Shanghai Jian Pu, and Line 3, for merchandise manufactured by Shenzhen Forest. Both entry lines remained suspended pending Commerce’s completion of an administrative review for merchandise entered between January 1, 2015, and December 31, 2015, that had been exported by certain companies listed in Message No. 6088306, issued on March 28, 2016. The list included both Shanghai Jian Pu and Shenzhen Forest. The first in time notice, lifting suspension of liquidation occurred for Line 3, on September 8, 2016, when Commerce rescinded the administrative review for entries of merchandise exported by Shenzhen Forest. See 81 Fed. Reg. 62083; Message No. 6271307 (Sept. 27, 2016). CBP did not liquidate the entry at this time because Line 1 remained suspended pending completion of Commerce’s administrative review for entries of merchandise exported by Shanghai Jian Pu. Given that Lime Tree’s protest made no reference to Shenzhen Forest, its deemed liquidation claim is limited to the lifting of suspension for Line 1, for merchandise manufactured by Shanghai Jian Pu.
Lime Tree alleges that suspension of liquidation for Line 1 was lifted when Commerce published the results of an administrative review in the Federal Register on April 11, 2016, for WBF entered between January 1, 2014, through December 31, 2014. 81 Fed. Reg. 21319. In the alternative, Lime Tree alleges that suspension of liquidation lifted when the subsequent court ordered injunction for such entries dissolved on May 12, 2017, as explained by Commerce in Message No. 7150306, issued on May 30, 2017. However, the date of entry for entry no. XXXXXXX6241 is June 3, 2015, meaning that neither the Federal Register publication nor the message cited by Lime Tree, pertaining to entries occurring in 2014, are applicable.
Suspension of liquidation was actually lifted for Line 1 on March 20, 2017, when Commerce issued Message No. 7079305 to notify CBP that the CIT had dissolved the injunction of liquidation for entries of merchandise exported by Shanghai Jian Pu. Commerce instructed CBP to liquidate all 2015 entries “of wooden bedroom furniture from … exported by Shanghai Jian Pu” at a 216% duty rate. As explained above, Shanghai Jian Pu is the manufacturer for the merchandise entered on Line 1. Additionally, the invoice and packing list issued by Shanghai Jian Pu to Lime Tree establish that Shanghai Jian Pu was also the exporter of the merchandise it manufactured and sold to Lime Tree. Given that Shanghai Jian Pu was both the manufacturer and exporter of the wooden bedroom furniture Lime Tree entered in 2015, it is Message No. 7079305 that constituted notice to CBP of the dissolved injunction, and thereby lifted suspension of liquidation for Line 1. Whether CBP properly liquidated Lime Tree’s entry, therefore, is determined by whether CBP liquidated the entry within six months of March 20, 2017.
The six-month liquidation deadline for entry no. XXXXXXX624 expired on October 20, 2017. CBP liquidated the entry September 29, 2017. CBP thus timely liquidated the entry within six months of the date when the final suspension in effect for the entry on Line 1 was lifted. 19 U.S.C. 19 U.S.C. § 1504(d). Subsequently, CBP reliquidated the entry on February 28, 2018, and again on March 1, 2018. Pursuant to 19 U.S.C. § 1501, CBP may voluntarily reliquidate an entry within 90 days “from the date of the original liquidation.” To comply with the 90-day voluntary reliquidation deadline under 19 U.S.C. § 1501, CBP had until December 28, 2017, to reliquidate the original liquidation for entry no. XXXXXXX624, and 90-days from then on for any subsequent reliquidations. Given that CBP did not reliquidate the entry until February 28, 2018, it failed to comply with the 90-day deadline under 19 U.S.C. § 1501. Consequently, neither the February 28, 2018, nor March 1, 2018, reliquidations for entry no. XXXXXXX624 were timely. The only timely and binding liquidation for the entry thus occurred on September 29, 2017.
HOLDING:
Based on the above, this protest is DENIED with respect to the deemed liquidation of entry no. XXXXXXX624 because Lime Tree’s entry was timely liquidated on September 29, 2017, and GRANTED with respect to the subsequent untimely reliquidations.
You are instructed to notify the Protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/, or other methods of public distribution.
Sincerely,
for Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division