OT:RR:CTF:ER
H258302 ECG
Port Director
Port of Boston
U.S. Customs and Border Protection
10 Causeway Street, Suite 603
Boston, MA 02222-1059
Attn: Bernadette Quirk, Supervisory Import Specialist
Pamela Jorgensen, Senior Import Specialist
Re: Request for Internal Advice on Avalon Risk Mgmt c/o Great American’s Protest Number 0401-2014-10061
Dear Port Director:
This is in response to your request for internal advice with regard to protest number 0401-2014-10061 ("Protest"), filed by the Protestant, Avalon Risk MGMT ("Avalon"), on July 31, 2014. Avalon protests the entries’ liquidation and argues that these entries were not subject to antidumping or countervailing duty orders, and thus, deemed liquidated because they were improperly suspended. Additionally, Avalon argues that in the event that the entries were subject to antidumping and countervailing duty orders, the entries were prematurely liquidated. We are denying further review because Avalon does not raise an issue that is a protestable decision by U.S. Customs and Border Protection (“CBP”). However, the Port of Boston (“Port”) requested internal advice for additional guidance with respect to the Protest and whether the entries were properly liquidated. Our response follows.
FACTS:
Between March 18, 2012, and May 4, 2012, Primio Brands USA Corp (“Primio”) entered three shipments of pasta from Italy from the manufacturer Pastifico F.lli Cellino Srl (“Cellino”). The entry numbers assigned to the shipments are: xxx-xxxx3814, entered on March 18, 2012; xxx-xxxx8383, entered on April 20, 2012; and xxx-xxxx0454, entered on May 4, 2012. Each of the three entries included packaged pasta of various shapes. Entry number xxx-xxxx8383 was entered as subject to antidumping and countervailing duties and invoiced as pasta entering in twenty-pound boxes comprised of twenty, one-pound packages. See Invoice Number 1Q/13 (Mar. 21, 2012). The other two entries were invoiced as bulk pasta, quantities weighing more than five pounds. Invoice Number 1Q/18, dated April 12, 2012, for entry number xxx-xxxx0454, and Invoice Numbers 10/9 and 10/8, dated February 22, 2012, for entry number xxx-xxxx3814, listed the pasta as packaged in twenty-pound boxes. However, those three invoices also listed the pasta as numbers PAST500 through PAST510, and PAST514 through PAST516, which corresponded to Primio’s website product list as pasta of various shapes in quantities of twenty, one-pound boxes. See http://www.priomiobrandsusa.com/ (last visited May 10, 2012).
The Port concluded that the pasta was within the scope of the antidumping duty and countervailing duty orders covering certain pasta from Italy. See Notice of Antidumping Duty Order and Amended Final Determination of Sales at Less Than Fair Value: Certain Pasta From Italy, 61 Fed. Reg. 38,547 (July 24, 1996) (“Antidumping Duty Order”); and Notice of Countervailing Duty Determination: Certain Pasta From Italy, 61 Fed. Reg. 38,544 (July 24, 1996) (“Countervailing Duty Order”). Commerce initiated an administrative review of the antidumping duty order for certain manufacturers, excluding Cellino. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 77 Fed. Reg. 52,688, 52,690 (Aug. 30, 2012). The Port received liquidation instructions from the Department of Commerce (“Commerce”) to assess antidumping duties on entries from manufacturers not included in the request for administrative review. See Message No. 2261311 (Sept. 17, 2012). The Port continued to suspend liquidation of Primio’s entries until it received liquidation instructions for the countervailing duty order. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 78 Fed. Reg. 53,128, 53,130-31 (Aug. 28, 2013). The Port received liquidation instructions from Commerce to assess countervailing duties on entries from manufacturers not included in the request for administrative review. See Message No. 3263302 (Sept. 20, 2013). The Port assessed antidumping and countervailing duties on Primio’s entries, liquidating entries xxx-xxxx3814 and xxx-xxxx0454 on November 29, 2013, and entry xxx-xxxx8383 on December 6, 2013. Primio failed to pay the duties, which gave rise to Avalon’s unsatisfied legal claim under bond. CBP made the first formal demands for payment on February 1, 2014, for entries xxx-xxxx3814 and xxx-xxxx0454, and on March 1, 2014, for entry xxx-xxxx8383. Avalon filed the instant Protest with CBP on July 31, 2014.
In its Protest, Avalon makes three arguments concerning the orders’ scope and CBP’s liquidation of entries. Avalon first argues that the pasta at issue is bulk pasta, pasta packaged in amounts weighing more than five pounds, because the commercial invoices described the imported pasta as weighing amounts greater than five pounds. Therefore, it argues that the pasta is not subject to antidumping or countervailing duties because the scope of the antidumping and countervailing duty orders exclude packages of pasta weighing more than five pounds. Second, Avalon argues that the entries should have deemed liquidated because the entries were improperly suspended as entries subject to the antidumping and countervailing duty orders because pasta weighing more than five pounds is not within the orders’ scopes. Avalon asserts that because the entries should have deemed liquidated, it voided the bills as a matter of law. Third, Avalon argues that in the event the entries are covered by the antidumping and countervailing duty orders, the entries were prematurely liquidated because Commerce did not publish the final results of the of the administrative review until February 28, 2014, after the entries were liquidated on November 29, 2013, and December 6, 2013. Avalon asserts that because the entries were prematurely liquidated, this was in violation of Commerce’s suspension order and therefore void. Contrary to Avalon’s assertions, the Port does not believe that the pasta falls within the bulk pasta exclusion; thus it is within the scope of the antidumping and countervailing duty orders and were liquidated according to the applicable liquidation instructions.
ISSUES:
I. Whether the entries are subject to the antidumping and countervailing duty orders.
II. Whether the entries were properly liquidated.
LAW AND ANALYSIS:
As an initial matter, we note that Avalon timely filed its protest on July 31, 2014, which is within 180 days of the February 1, 2014, and March 1, 2014, first demand dates. However, because the scope of the antidumping and countervailing duty orders was clear and CBP acted in accordance with Commerce’s instructions, CBP acted in its ministerial capacity when it liquidated the entries. Therefore, as CBP acted in its ministerial capacity, there is no decision made by CBP that serves as a valid basis for protest or further review. However, the Port requested guidance in an internal advice request with respect to whether the entries were properly liquidated.
In the context of antidumping cases, CBP is “charged with the ministerial function of fixing ‘the amount of duty to be paid’ on subject merchandise.” Xerox Corp. v. United States, 289 F.3d 792, 794 (Fed. Cir. 2002) (internal citations omitted). When determining whether merchandise may be subject to an antidumping duty order, CBP “makes factual findings to ascertain what the merchandise is, and whether it is described in an order” and if applicable, CBP will assess appropriate antidumping duties. Id. Such factual findings as to the “classification and rate and amount of duties chargeable” are protestable. Id.
Furthermore, 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”). Therefore, if the scope of the order is unambiguous and CBP follows Commerce’s instructions, there is no decision that is made by CBP that would be protestable. See 19 U.S.C. § 1514(a); see, e.g., HQ H028635 (Mar. 18, 2011) (explaining that only matters that challenge decisions by CBP are protestable). In this case, the pasta at issue falls within the scope of the orders and is not packaged in amounts greater than five pounds that would exclude it from the orders as bulk pasta, as ruled by Commerce.
In determining the protestability of the Port’s antidumping and countervailing duty assessments in this case, we first examine whether there is uncertainty regarding the pasta’s inclusion within the scope of the antidumping and countervailing duty orders. For certain pasta from Italy, the antidumping duty order covers the following: “. . . certain non-egg dry pasta in packages of five pounds (or 2.27 kilograms) or less, whether or not enriched or fortified or containing milk or other optional ingredients such as chopped vegetable purees, milk, gluten, diastases, vitamins, coloring and flavorings, and up to two percent egg white.” Antidumping Duty Order, 61 Fed. Reg. at 38,547; see also, Countervailing Duty Order, 61 Fed. Reg. at 38,544. Both Avalon and the Port agree that the pasta at issue falls within the scope of the orders. There is disagreement, however, as to whether the pasta also falls under the bulk pasta scope exclusion.
The scope of the antidumping and countervailing duty orders excludes pasta in packages greater than five pounds. Commerce has subsequently clarified this exclusion in a scope ruling, which stated that:
. . . multipacks consisting of six one-pound packages of pasta, which are shrink wrapped into a single package, are within the scope of the antidumping duty and countervailing duty orders on certain pasta from Italy.
2. Although the multipack imported by Sidari has an overall weight of six pounds, the Commerce Department found this product to be within the scope of the orders because the individually wrapped packages contained within it weigh one pound each. The fact that one-pound packages are not sold individually has no bearing on whether they should be included within the scope.
See Message No. 9345111 (Dec. 11, 1998). The pasta at issue in this case was entered in boxes that contained twenty, one-pound packages. Entry number xxx-xxxx8383 was invoiced as entering in twenty-pound boxes comprised of twenty, one-pound packages. The other two entries at issue, xxx-xxxx0454 and xxx-xxxx3814, were invoiced with numbers that corresponded to Primio’s website product list as pasta packaged in quantities of twenty-one-pound boxes. As in the case discussed in Commerce’s scope ruling, in this case although the total weight of the shipment box exceeded the five pounds limit set by the antidumping and countervailing duty orders, it is not bulk pasta because it was entered in packages that weighed one pound each. See id. Therefore, the pasta does not fall within the bulk pasta exclusion.
Additionally, because the pasta is subject to the antidumping and countervailing duty orders, it is necessary to determine whether CBP properly followed Commerce’s instructions to liquidate the entries. 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. 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. See Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1376 (Fed. Cir. 2002). “In 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.” Id. CBP typically receives the relevant notice in the form of explicit liquidation instructions from Commerce, but the courts have recognized that other methods of notice are sufficient.
In the instant case, the suspension of Primio’s entries lifted when Commerce published its initiation of antidumping and countervailing duty administrative reviews that excluded Cellino as a manufacturer to be reviewed. Commerce received timely requests pursuant to 19 C.F.R. § 351.213(b) to review certain manufacturers under the antidumping and countervailing duty orders. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 77 Fed. Reg. 52,688, 52,690 (Sep. 26, 2012) (covering the review of the antidumping duty order); Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 78 Fed. Reg. 53,128, 53,130-31 (August 28, 2013) (covering the review of the countervailing duty order). Commerce’s publication of the initiation of administrative reviews removed the statutory suspension for the manufacturers that would not be reviewed. See 19 U.S.C. § 1504(d). The notice in this case is like a notice of partial rescission of administrative review that lifts suspension of liquidation for manufacturers that are no longer subject to an administrative review. See HQ H028384 (Feb. 28, 2012) (noting that suspension of liquidation lifted on entries for certain exporters no longer subject to the administrative review after the notice of partial rescission). The suspension placed by the antidumping duty order lifted on September 26, 2012, when Commerce published its initiation of an administrative review for the order for certain manufacturers that did not include Cellino. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 77 Fed. Reg. at 52,690. However, the suspension of liquidation for the countervailing duty order remained. Thus, suspension for the entries in this case lifted on August 28, 2013, when Commerce published its initiation of an administrative review for the countervailing duty order for certain manufactures that did not include Cellino. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 78 Fed. Reg. at 53,130-31.
Furthermore, CBP properly liquidated the entries in accordance with Commerce Messages 2261311 and 3263302. See Message No. 2261311 (Sept. 17, 2012) (providing automatic liquidation instructions for the firms covered by the antidumping duty order and listing certain firms with continued suspension of liquidation during the administrative review); Message No. 3263302 (Sept. 20, 2013) (providing automatic liquidation instructions for the firms covered by the countervailing duty order and listing certain firms with continued suspension of liquidation during the administrative review). The messages directed CBP to liquidate the merchandise at the cash deposit rate in effect on the date of entry for firms not listed in the request for administrative review. See id. The Port then liquidated entries xxx-xxxx3814 and xxx-xxxx0454 on November 29, 2013, and entry xxx-xxxx8383 on December 6, 2013, before the end of the six-month period required to liquidate entries that commenced when suspension lifted on August 28, 2013. See 19 U.S.C. § 1504(d). Therefore, Primio’s entries did not liquidate by operation of law pursuant to 19 U.S.C. § 1504(a) as Avalon asserts. Accordingly, because CBP followed Commerce’s instructions, CBP acted in its ministerial capacity. See Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994) (stating that, generally, antidumping duty rates correctly applied by CBP are not protestable because “Customs has a merely ministerial role in liquidating antidumping duties”). CBP Section 1514(a) of Title 19 states that only decisions made by CBP are protestable. Therefore, because CBP properly applied Commerce’s instructions, this is not a matter that is protestable. Thus, this matter is not a valid basis for review.
Avalon lastly argues that in the event that the antidumping and countervailing duty orders cover the entries, Commerce did not publish the final results of the of the administrative review until February 28, 2014, and thus, CBP prematurely liquidated the entries on November 29, 2013, and December 6, 2013. It asserts that because there was no extension of liquidation, the entries were prematurely liquidated in violation of Commerce’s suspension order and therefore void. Avalon provides that Commerce did not publish the final results of its administrative review until February 28, 2014. See Certain Pasta From Italy: Notice of Final Results of 16th Antidumping Administrative Review; 2011-2012, 79 Fed. Reg. 11,409 (Feb. 28, 2014). However, this administrative review only covered certain manufacturers, which did not included Cellino. See id. 79 Fed. Reg. at 11,410. Contrary to Avalon’s assertions, the initiation of administrative review for the countervailing duty order provided CBP notice from Commerce that lifted the entries’ suspension. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 78 Fed. Reg. at 53,128. Moreover, Avalon does not address Commerce’s September 2012 liquidation instructions cited above. CBP performed a ministerial role, following these instructions. There is no valid basis for review because CBP did not make a decision that would be protestable. See 19 U.S.C. § 1514(a); see, e.g., HQ H028635 (Mar. 18, 2011) (explaining that only matters that challenge decisions by CBP are protestable). Accordingly, Avalon does not challenge a protestable decision made by CBP, and therefore, further review is unavailable and the protest should be rejected as non-protestable.
HOLDING:
Based on the above, Primio’s entries were properly liquidated and did not deem liquidate by operation of law. Accordingly, the protest failed to raise a protestable issue and should be rejected as non-protestable.
You are to mail this decision to counsel no later than sixty days from the date of this decision. At that time, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public, on the CBP Home Page on the World Wide Web at http://www.cbp.gov, by means of the Freedom of Information Act, and other methods of publication.
Sincerely,
Myles B. Harmon, Director Commercial and Trade Facilitation Division