LIQ-4-01
LIQ-11
OT:RR:CTF:ER H028635 GGK
Port Director
U.S. Customs and Border Protection
Chicago Port Office
9915 Bryn Mawr Avenue
Rosemont, IL 60018
Attn: Marlene Gothelf
RE: Homier Distributing Company; Protest and Application for Further Review 3901-08-100530
Dear Port Director:
This is in response to the application for further review (“AFR”) for Protest number 3901-08-100530, filed by Homier Distributing Company (“Homier”), on April 3, 2008. The Protest concerns Homier’s objection to Customs and Border Protection’s (“CBP”) liquidation of various entries of hand trucks imported from the People’s Republic of China and subject to antidumping duties.
FACTS:
From January 18 to August 31, 2005, Homier filed twenty entries for shipments of hand trucks from the People’s Republic of China (“PRC”) that were subject to Antidumping Duty Order number A-570-891 (hereinafter the “Antidumping Duty Order”). Homier’s shipments of hand trucks were manufactured in the PRC by a company called Qingdao Future Tool Inc. (“Future Tool”).
On October 14, 2004, the U.S. Department of Commerce (“Commerce”) issued a Final Determination finding that hand trucks and certain parts thereof from the PRC were being sold, or likely to be sold, at less than fair value within the United States. Subsequently, on December 2, 2004, Commerce issued the Antidumping Duty Order for hand trucks from the PRC. The Antidumping Duty Order instructed CBP to require cash deposits for PRC hand trucks manufactured by Future Tool equal to the specific weighted-average antidumping duty margin of 32.76%.
On February 1, 2006, Commerce initiated the first administrative review of the Antidumping Duty Order for the first period of review from May 24, 2004, to November 30, 2005. Commerce issued the Final Results for that review on May 15, 2007. In the Final Results, Commerce noted that Future Tool failed to respond to Commerce’s requests for information throughout the review; thus, Commerce assigned to Future Tool the PRC-wide antidumping margin of 383.60%. On June 25, 2007, Commerce issued liquidation instructions covering PRC hand trucks entered during the first review period. In accordance with the liquidation instructions, CBP assessed antidumping duties and liquidated the entries on October 12, 2007, applying the PRC-wide antidumping margin of 383.60%. Upon liquidation, CBP staff at the Port of Chicago (“Port”) posted public notice of liquidation for the entries at the CBP office located at 9915 Bryn Mawr Avenue, Rosemont, Illinois.
On April 3, 2008, two law firms submitted protests on behalf of Homier to the Port. On the same day, Homier requested that the two protests be consolidated into a single protest. Therefore, on April 3, 2008, the Port combined the two protests and designated the consolidated filing as Protest number 3901-08-100530 (“Protest”). The consolidated Protest forwarded various arguments contesting the liquidation of all twenty entries at the weighted-average antidumping margin of 383.60%.
ISSUE:
Whether the Port properly liquidated the entries.
LAW AND ANALYSIS:
As an initial matter, we note that a claimant may protest the liquidation of an entry by CBP pursuant to 19 U.S.C. § 1514(a)(5). Homier timely filed its Protest on April 3, 2008, which is within 180 days of the date of liquidation on October 12, 2007. In protesting CBP’s liquidation of the entries, Homier asserts: 1) that Homier was ignorant of antidumping laws and relied on the assurances of Future Tool; 2) that Homier does not have the financial ability to pay the antidumping duties assessed; and 3) that the entries are deemed liquidated because the posting of the liquidation notice was not in a conspicuous location at the Port’s offices, therefore, voiding the actual liquidation. Upon review of the AFR, we find that Homier’s Protest involves facts and legal arguments that were not considered at the time of the original ruling. See 19 C.F.R. § 174.24(c). Moreover, these facts and legal arguments require an interpretation of a court decision or Headquarters’ ruling. See 19 C.F.R. § 174.26(b)(1)(iii). Therefore, further review is warranted.
In its Protest, Homier disputes the assessment of antidumping duties at the PRC-wide rate of 383.60%. Specifically, Homier argues that it was unfamiliar with U.S. antidumping laws and procedures. Therefore, Homier relied upon Future Tool’s assurances that the cash deposit, based on the weighted-average antidumping margin of 32.76%, collected at the time of entry constituted the full extent of Homier’s potential antidumping liability. Moreover, Homier asserts that it relied on Future Tool’s assurance that the manufacturer was actively contesting the antidumping case before Commerce. Finally, Homier represents that it is unable pay the full amount of antidumping duties and interest assessed by CBP. For the reasons discussed below, we find that there is no authority for CBP to reconsider its liquidation of the twenty entries at issue.
The authority to determine the applicable antidumping duty rate is within the jurisdiction of Commerce. See 19 U.S.C. §§ 1673-1675, 1677(1). CBP has a ministerial role in liquidating antidumping duties and merely follows Commerce’s instructions when assessing and collecting said duties. See Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994) (holding that CBP has a ministerial role in liquidating antidumping duties and “cannot modify Commerce’s determinations, their underlying facts, or their enforcement”). In arguing ignorance of the law, detrimental reliance on a foreign supplier’s participation in an ongoing antidumping case and not having the ability to pay duties assessed, Homier is essentially voicing reasons to mitigate the antidumping duty imposed by Commerce. None of these arguments challenge any decision made by CBP in the liquidation of the entries pursuant to Commerce’s instructions. Because CBP lacks the authority to change or disregard the Antidumping Duty Order and liquidation instructions issued by Commerce, CBP also lacks the authority to grant Homier the relief requested in its Protest. Thus, Homier’s arguments regarding ignorance of the law, detrimental reliance on Future Tool and inability to pay are not protestable matters because they are not decisions of CBP. See 19 U.S.C. § 1514(a).
Additionally, Homier also argues that the twenty entries at issue were deemed liquidated pursuant to 19 U.S.C. § 1504(d). Under 19 U.S.C. § 1504(d), once the suspension of liquidation required by statute or court order is removed, entries subject to the suspension must be liquidated within six months after CBP receives notice of the lifting of suspension, unless such entries are properly extended. If an entry is not liquidated within the six-month period, and CBP does not extend the liquidation, then the entry is 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).
When making its deemed liquidation argument, Homier does not allege that CBP failed to liquidate the entries at issue within six months of receiving notice regarding the lifting of suspension. Rather, Homier argues that the liquidation is invalid because the bulletin notices of liquidation for the entries were not posted in a conspicuous place at the Port’s offices. According to 19 C.F.R. § 159.9(b), CBP must post notice of liquidations once liquidations occur. Specifically, CBP must comply with the following requirements:
The bulletin notice of liquidation shall be posted for the information of importers in a conspicuous place in the customhouse at the port of entry…or shall be lodged at some other suitable place in the customhouse in such a manner that it can readily be located and consulted by all interested persons, who shall be directed to that place by a notice maintained in a conspicuous place in the customhouse stating where notices of liquidation of entries are to be found.
19 C.F.R. § 159.9(b).
In alleging that CBP inadequately posted liquidation notices for the entries at issue, Homier makes the following allegations:
Notices of liquidation for 2005 entries are contained in expansion folders in a bookrack in the lobby of the Chicago Custom house. The notices of liquidation of the 2007 [entries] are not in this bookrack. The 2007 liquidation notices were in a separate room (122) in random order in various locations. No sign or other notices exist near to or at the entrance to room 122 directing interested parties to the location of any notices of liquidation. In addition, no CBP employee was available to direct interested parties to the location of the liquidation bulletin notices.
Based on the above description, Homier argues that “there was no substantial compliance with the requirements of 19 C.F.R. § 159.9.” Consequently, Homier concludes that CBP’s liquidation of the twenty entries is illegal, null and void. Moreover, because Homier believes that a lawful liquidation never occurred, Homier asserts that the entries are deemed liquidated, pursuant to 19 U.S.C. § 1504(d), at the rate of duty asserted at the time of entry, that is, 32.76%.
Homier’s deemed liquidation argument is without merit. Homier’s argument is premised on the idea that the Port’s practice of posting liquidation notices violates 19 C.F.R. § 159.9. The Court of Appeals for the Federal Circuit (“Federal Circuit”) has reviewed what constitutes proper posting of liquidation bulletins pursuant to 19 C.F.R. § 159.9. In Frederick Wholesale Corp. v. United States (“Frederick II”), 754 F.2d 349, 350 (Fed. Cir. 1985), the appellant importer argued that bulletin notices located in different rooms of a customhouse and placed on a table and shelf without signs directing the public to the location of the bulletins violated 19 C.F.R. § 159.9 requirements. Consequently, the appellant argued that absent proper notice, a timely liquidation did not take place and the entry under protest was deemed liquidated by operation of law. Frederick II, 754 F.2d. at 351. The Federal Circuit disagreed with the appellant’s arguments in Frederick II and concluded that 19 C.F.R. § 159.9(b) posting requirements were satisfied. In overruling the appellant’s arguments, the appellate court held that the rooms where the bulletins were kept were open and accessible to interested parties. 754 F.2d at 352. Additionally, the Federal Circuit held that although no signs were found in the customhouse directing the public to the bulletins, a prudent interested party exercising a reasonable amount of diligence could have inquired about the location of the bulletins at any of the offices within the customhouse. 754 F.2d at 352.
The issues in the instant Protest are similar to those presented in Frederick II. According to Homier, the 2007 liquidation notices were located in a different room from the location of the 2005 notices at the Port’s offices. This room is not alleged to be closed to the public. Although no signs specifying the location of the liquidation bulletins allegedly existed, there are many offices within the building staffed with CBP employees capable of providing directions to a prudent interested party exercising a reasonable amount of diligence. Finally, the fact that Homier, or its representative, successfully located the applicable 2007 liquidation notice at the Port’s offices shows that the notice was posted in an adequately conspicuous and open location accessible to prudent interested parties. Therefore, the posting of the liquidation notice for the twenty entries satisfies the requirements of 19 C.F.R. § 159.9.
As a final note, the purpose of 19 C.F.R. § 159.9(b) is to provide proper notice of liquidation to interested parties so that an interested party’s ability to file a timely protest is not impaired. See Frederick Wholesale Corp. v. United States (“Frederick I”), 585 F. Supp. 640, 643 (Ct. Int’l Trade 1983) (holding that the ability of a plaintiff to protest in a timely fashion is impaired absent proper notice of liquidation; therefore, the court must consider Customs’ compliance with 19 C.F.R. § 159.9 to determine whether a protest is timely filed). Here, Homier timely filed its Protest. Therefore, CBP’s posting of the liquidation bulletins did not impair Homier’s ability to timely file a protest. Based on the above, there are no deficiencies with the posting of the liquidation notice at the Chicago customhouse. In addition, CBP liquidated the entries on October 12, 2007, which is well within six months of receiving the notice to liquidate pursuant 19 U.S.C. § 1504(d). Thus, the deemed liquidation statute is not applicable and the Port properly liquidated the entries at the weighted-average antidumping margin of 383.60%.
HOLDING:
The Port’s liquidation of the twenty entries at issue in Protest number 3901-08-100530 was proper and consistent with Commerce’s instructions. Therefore, the Protest is DENIED in full.
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