LIQ –4-01; 4-02; 11;PRO-2-02
229603 LLB
Category: Protests and Liquidation
Port Director of Customs
Trade Operations
610 S. Canal Street
Chicago, IL 60607
Attn: Robert Lehman
RE: Internal Advice; Protest No. 3901-01-100287; JCM, Ltd. d/b/a Racconto; 19 U.S.C. § 1514(a); HQ 229413 (March 12, 2002); HQ 225382 (July 3, 1995); Mitsubishi Electronic America Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994); ABC International Traders, Inc. v. United States, 19 CIT 787 (1995); American Hi-Fi International, Inc. v. United States, 936 F. Supp. 1032 (Ct. Int’l Trade 1996); HQ 227653 (October 31, 1997); HQ 229413(March 12, 2002); HQ 226285 (October 10, 1997)
Dear Mr. Lehman:
The above-referenced protest was forwarded to this office for further review. As explained below, because the requirements for further review have not been met, we are treating the application as a request for internal advice pursuant to 19 C.F.R. § 177.11. We have considered the arguments raised by the protestant, JCM, Ltd. d/b/a Racconto, as well as your office. Our decision follows.
FACTS
The subject protest covers 34 entries of uncooked, non-egg pastas from Italy made between February 16, 1996 and July 23, 1996. According to the record before us, the pasta was manufactured by Liguori Pastificio DAL 180 S.p.A (Liguori) of Italy. Prior to entry, the Department of Commerce (Commerce) made a preliminary determination that the protestant’s merchandise was subject to a dumping margin of 12.85%. See Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Certain Pasta from Italy, 61 Fed. Reg. 1344 (January 19, 1996). Three days later, Commerce issued instructions to Customs to collect cash deposits or bonds in the foregoing amount. On March 6, 1996, Commerce issued instructions to Customs to suspend liquidation of merchandise entered or withdrawn from warehouse for consumption on or after January 19, 1996.
On June 20, 1996, Commerce issued instructions to Customs directing Customs to continue suspending liquidation of the subject merchandise entered or withdrawn from warehouse for consumption on or after January 19, 1996. In addition, Commerce directed Customs, effective June 14, 1996, to collect cash deposits or bonds for Ligouri pasta at a dumping margin of 12.41%. Based on our review of the entries filed, the protestant posted bonds for the entries made prior to June 14, 1996, equal to the 12.85% dumping margin and for entries filed after June 14, 1996, the protestant posted bonds equal to 12.41% of the dumping margin.
On June 14, 1996, Commerce made its final determination regarding the pasta determining that the merchandise was subject to a dumping margin of 12.41%, which was reflected in the antidumping order published shortly thereafter. See Notice of Antidumping Duty Order and Amended Final Determination of Sales at Less Than Fair Value: Certain Pasta From Italy, 61 Fed. Reg. 38547 (July 24, 1996). A month later, Commerce amended its final determination and the antidumping order to reflect that the merchandise was subject to a dumping margin of 11.58%. See Notice of Second Amendment to Final Determination and Antidumping Duty Order: Certain Pasta from Italy, 61 Fed. Reg. 42231 (August 14, 1996).
On February 17, 1998, Commerce issued liquidation instructions to Customs. (Message 8048116). The instructions indicated that the period covered was July 24, 1996 to June 30, 1997; however, the instructions continue to state:
2. The Department of Commerce has not received a request for an administrative review of the antidumping finding/order for the periods and on the merchandise listed below, except for the firms noted. Therefore, in accordance with section 351.212(c) of the Commerce Department Regulations, you are to assess antidumping duties on merchandise entered, or withdrawn from warehouse, for consumption at the cash deposit or bonding rate in effect on the date of entry summary.
. . .
Certain Pasta From Italy Period: 01/19/96-06/30/97
Liquidate all entries for all firms except:
Castelletti S.p.A. Societa Transporti Castelletti
Arrighi S.p.A. Industrie Alimentari Barilla G.e.R.F.ILLI S.p.A.
General Noli S.p.A. R. Querirolo & Co., S.p.A.
Puglisi S.p.A. La Molisana Industrie Alimentari
Pastifico Fratelli Pagani Rummo S.p.A. Molino e Pastificio
Industria Alimentare Colavita S.p.A. F. Illi De Cecco di Filippo
4. These instructions constitutes [sic] the immediate lifting of suspension of liquidation of entry summaries for the merchandise and periods listed above. . .
On May 2, 2000, Commerce issued a correction to the foregoing instruction which provided the following, in pertinent part:
1. This is a correction of the certain pasta from Italy nonreview/automatic liquidation instructions in message no. 8048116 issued on 02/17/1998 for entries from 1/19/1996 through 06/30/97.
. . .
3. Liquidate all entries from Liguouri Pastificio DAL 1820 S.p.A. for the period 01/19/1996 through 06/13/1997.
According to the Automated Commercial System (ACS), Customs liquidated the subject entries on November 13, 2000, “no change”.
On February 9, 2001, the protestant timely filed its protest and application for further review arguing 1) that pursuant to F.lli De Cecco Di Filippo Fara San Martino S.p.A. v. United States, 21 C.I.T. 1130 (Ct. Int’l Trade 1997), Commerce had no legal authority to instruct Customs to collect deposits of antidumping duties for the period of May 18, 1996 through July 24, 1996; and 2) that the difference between the deposit rate published in the preliminary determination and the final rate published in the antidumping order should be refunded with interest.
ISSUE
Whether the issues raised by the protestant are protestable under 19 U.S.C. § 1514(a)
LAW AND ANALYSIS
Initially, we note that the protestant’s application for further review (AFR) does not meet the requirements set forth in 19 C.F.R. § 174.24, which provides:
Further review of a protest which would otherwise by denied by the port director shall be accorded a party filing an application for further review which meets the requirements of § 174.25 when the decision against which the protest was filed:
(a) Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise;
(b) Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts;
(c) Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or
(d) is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to § 177.11(b)(5) of this chapter.
Therefore, further review will be accorded to the party filing an application for further review which meets the requirements of § 174.25 and at least one of the criterion in § 174.24. In the subject protest, the port approved the AFR notwithstanding the fact the protestant has not alleged any of the conditions required in § 174.24 of the decision protested. Consequently, the criteria for further review have not been met and therefore, we are treating protestant’s application as a request for internal advice.
* * *
First the protestant argues that pursuant to F.lli De Cecco Di Filippo Fara San Martino S.p.A. v. United States, supra, Commerce had no legal authority to instruct Customs to collect deposits of antidumping duties for the period of May 18, 1996 through July 24, 1996. Second, the protestant argues that the difference between the deposit rate published in the preliminary determination and the final rate published in the antidumping order should be refunded with interest. Pursuant to 19 U.S.C. § 1514(a),
. . .[d]ecisions of the Customs Service, including the legality of all orders and findings entering into the same, as to—
(1) the appraised value of merchandise;
(2) the classification and rate and amount of duties chargeable;
(3) all charges and exactions of whatever character within the jurisdiction of the Secretary of Treasury;
(4) the exclusion of merchandise from entry of delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under section 1337 of this title;
(5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification therefor;
(6) the refusal to pay a claim for drawback; or
(7) the refusal to reliquidate an entry under section 1520(c) of this title;
shall be conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section . . .
Generally, we have held that the role of Customs in the antidumping process is “[s]imply to follow Commerce’s instructions in collecting deposits of estimated duties and in assessing antidumping duties, together with interest, at the time of liquidation.” HQ 229413 (March 12, 2002); HQ 225382 (July 3, 1995); Mitsubishi Electronic America Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994). However, if Customs fails to follow the instructions of the Department of Commerce, that failure may be subject to protest under 19 U.S.C. §1514. See, e.g., ABC International Traders, Inc. v. United States, 19 CIT 787, 791 (1995)( “... [c]laims [that Customs erroneously liquidated certain entries and failed to follow Commerce’s liquidation instructions] may be brought before the court under 28 U.S.C. §1581(a)(1988), after denial of protests by Customs.”); see also, American Hi-Fi International, Inc. v. United States, 936 F. Supp. 1032, 1037 (Ct. Int’l Trade 1996)([j]urisdiction for actions challenging Customs’ failure to follow Commerce’s actual liquidation instructions ... is found under 28 U.S.C. §1581(a).”).
With regard to the first argument raised, there is no allegation that Customs failed to follow Commerce’s instructions as it relates to the assessment of cash deposits. Instead, the protestant challenges whether Commerce had the authority to order Customs to collect cash deposits. Commerce’s decision to order Customs to collect cash deposits is clearly not a Customs decision, and is therefore not protestable under 19 U.S.C. § 1514(a). See HQ 227653 (October 31, 1997)(challenge to Commerce’s decision to suspend liquidation, not Customs’ failure to follow instructions).
With regard to the second argument raised, there is no allegation that Customs failed to follow Commerce’s liquidation instructions as it relates to the rate at which the antidumping duties were assessed. Instead, the protestant challenges the actual instructions insofar as they instruct Customs to liquidate the entries at the cash deposit or bonding rate in effect at the time of entry, e.g. at 12.85% and 12.41%, rather than to refund the difference between the cash deposit/bonding rate and the final rate established in the antidumping order, 11.58%. Based on the foregoing precedent, this issue is not protestable under 19 U.S.C. §1514; therefore, the protest should be denied. See HQ 229413(March 12, 2002)(holding that where the liquidation instructions stated that antidumping duties should be assessed on a per unit basis, protestant’s argument that antidumping duties should have been assessed on a percentage basis pursuant to a decision by the Court of International Trade, challenged the actual liquidation instructions, rather than Customs failure to follow the liquidation instructions) HQ 226285 (October 10, 1997)(holding that protestant’s arguments addressing the assessment of double antidumping duties and penalties were not protestable inasmuch as they challenged the liquidation instructions, not Customs failure to follow the instructions).
HOLDING
The protestant does not argue that Customs failed to follow the Department of Commerce’s instructions with regard to the collection of cash deposits/bonds and to the rate at which antidumping duties were assessed. Rather, the protestant argues that Commerce did not have authority to order Customs to collect cash deposits/bonds and that antidumping duties should have been assessed to reflect the difference between the cash deposit/bond rate and the final results of the determination reflected in the antidumping order. Insofar as the protestant’s argument challenges the actual liquidation instruction, not Customs failure to follow the instruction, the protestant has not presented a protestable issue under 19 U.S.C. § 1514(a). The subject protest should be DENIED.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles Harmon, Acting Director
Commercial Rulings Division