PRO 2-05, LIQ 9-02
OT:RR:CTF:ER H215035 ASL
Port Director
U.S. Customs and Border Protection
1901 Cross Beam Road
Coffey Creek Business Park
Charlotte, NC 28217
Attn: Ms. Stephanie Allen, Senior Import Specialist
Re: Application for Further Review of Protest No: 1512-11-100189; Polyester Staple Fiber from Korea; Antidumping Order A-580-839; Reliquidation of a deemed liquidation
Dear Port Director,
The purpose of this correspondence is to address the Application for Further Review (“AFR”) of Protest Number: 1512-11-100189, dated November 14, 2011, which we received April 24, 2011. The protesting party is Consolidated Fibers, Inc. (“Consolidated Fibers”).
FACTS:
Consolidated Fibers made an entry of polyester staple fiber (“PSF”) from the Republic of Korea on December 7, 2005, that was subject to antidumping duty order number A-580-839. See Notice of Amended Final Determination of Sales at Less Than Fair Value: Certain Polyester Staple Fiber From the Republic of Korea and Antidumping Duty Orders: Certain Polyester Staple Fiber From the Republic of Korea and Taiwan, 65 Fed. Reg. 33807 (May 25, 2000). This PSF was exported by Dongwoo Industry Co., Ltd.
On May 25, 2000, the U.S. Department of Commerce (“Commerce”) issued an amended final determination finding that PSF from the Republic of Korea was being sold, or likely to be sold, at less than fair value within the United States. Id. Subsequently, on December 24, 2007, Commerce issued an amended order for PSF from the Republic of Korea. The amended antidumping duty order instructed Customs and Border Protection (“CBP”) to require cash deposits of 7.91 percent for PSF manufactured or exported by parties subject to the all-others rate. See Certain Polyester Staple Fiber from the Republic of Korea: Notice of Amended Final Determination and Amended Order Pursuant to Final Court Decision, 68 Fed. Reg. 74552 (Dec. 24, 2003). At the time Dongwoo did not have its own rate and thus, the all-others rate applied. Id.
On December 10, 2007, Commerce published its final results of the antidumping duty administrative review, for the period of review from May 1, 2005, to April 30, 2006. See Certain Polyester Staple Fiber from Korea: Final Results of the 2005-2006 Antidumping Duty Administrative Review, 72 Fed. Reg. 69663 (Dec. 10, 2007). Dongwoo received a separate rate of 48.14 percent. Id. On January 14, 2008, Commerce sent CBP liquidation instructions for entries exported or produced by Dongwoo during this period, stating that CBP should assess antidumping duties. See Message No. 8014206 (Jan. 14, 2008).
On May 6, 2011, CBP posted notice in the customs house bulletin that the entry deemed liquidated on June 10, 2008 at the rate asserted at the time of entry, which was 7.91 percent. On June 17, 2011, CBP sent Consolidated Fibers a CF 29 stating that it had rate advanced the entry with interest. On July 22, 2011, CBP reliquidated the entry at Dongwoo’s separate rate as instructed by Commerce. On November 14, 2011, Consolidated Fibers filed a protest with the port protesting the reliquidation of its entry, arguing that the entry deemed liquidated at a lower rate. The port acknowledged that the entry deemed liquidated. However, under its reliquidation authority, the port reliquidated the entry within 90 days from the date on which notice of the original liquidation was posted in the customs house bulletin.
ISSUES:
Whether CBP properly reliquidated the entry.
LAW AND ANALYSIS:
We note initially that the instant protest was timely filed, within 180 days from the date of reliquidation. 19 U.S.C. § 1514(c)(3)(A). Reliquidation of Consolidated Fiber’s entry was made on July 22, 2011, and this protest was filed on November 14, 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. 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).
Generally, assessed antidumping duties properly applied by CBP are not protestable, because "Customs has a merely ministerial role in liquidating antidumping duties…" Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). However, inasmuch as Consolidated Fibers protests the liquidation, i.e., disputes the application by CBP of Commerce's liquidation instructions, this matter is protestable. See Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002).
Consolidated Fibers contends that CBP did not liquidate the entry within six months after receiving notice of the removal of suspension of liquidation and the protested entry deemed liquidated as entered per 19 U.S.C. § 1504 under International Trading Co. v United States, 281 F.3d 1268 (Fed. Cir. 2002). Section 1504(d) of Title 19 requires that CBP liquidate entries within six months after receiving "notice" that a suspension of liquidation of such entries has been removed. 19 U.S.C. § 1504(d). If CBP fails to timely liquidate the entries after receiving notice, the entries are "deemed" liquidated at the rate asserted at the time of entry. Id. See also, Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1376 (Fed. Cir. 2002). Consolidated Fibers argues that the reliquidation of its entry at the higher rate was improper because the entry deemed liquidated. Instead, Consolidated Fibers seeks reliquidation at the rate asserted at the time of entry, 7.91 percent. However, because the entry was properly reliquidated, the protest is denied.
Prior to 2004, CBP did not have the authority to reliquidate deemed liquidated entries. However, on December 3, 2004, Congress gave CBP the statutory authority to voluntary reliquidate an entry that liquidated in accordance with 19 U.S.C. § 1504 within 90 days from the date on which notice of the original liquidation was given to the importer. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. No. 108-429, 118 Stat. 2598 (codified in 19 U.S.C. § 1501); see also Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1362 n.26 (Fed. Cir. 2006) (noting that “[s]ince § 1504(d) is the deemed liquidation provision, it follows that deemed liquidations are subject to reliquidation by Customs”). CBP’s implementing regulations further clarify the ability for CBP to reliquidate deemed liquidated entries. Section 173.3 of CBP’s regulations state that “within 90 days from the date notice of deemed liquidation…is given to the importer…the port director may reliquidate on his own initiative….” 19 C.F.R. § 173.3.
None of the facts referenced above are in dispute here. On December 10, 2007, Commerce published its final results in the Federal Register. See Certain Polyester Staple Fiber from Korea: Final Results of the 2005-2006 Antidumping Duty Administrative Review, 72 Fed. Reg. 69663 (Dec. 10, 2007). Commerce issued liquidation instructions on January 14, 2008. See Message No. 8014206 (Jan. 14, 2008). CBP did not liquidate the entry and six months from Commerce’s publication of its final results in the Federal Register the entry deemed liquidated, on June 10, 2008. International Trading Co. v United States, 281 F.3d 1268, 1277 (Fed. Cir. 2002). Upon discovering the deemed liquidation had occurred, on May 6, 2011, CBP posted notice of the deemed liquidation in the customs house. On June 17, 2011, CBP issued a notice of action to Consolidated Fibers advancing the rate of antidumping duties to the rate instructed by Commerce in Message number 8014206 (Jan. 14, 2008). On July 22, 2011, CBP reliquidated the entry. The reliquidation of the deemed liquidated entry must occur within 90 days from the date notice of the underlying deemed liquidation occurred. 19 U.S.C. § 1501. Here, notice of the deemed liquidation occurred on May 6, 2011, and CBP timely reliquidated the entry on July 22, 2011, within 90 days.
HOLDING:
Consolidated’s entry was properly reliquidated and protest 1512-11-100189 should be DENIED.
No later than 60 days from the date of this letter, the Office of 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