PRO 2-05
OT:RR:CTF:ER
H258962 ECG
Port Director
Port of San Francisco
U.S. Customs and Border Protection
555 Battery Street
San Francisco, CA 90802
Attn: John Clausen, Senior Import Specialist
Re: Request for Internal Advice on Alltrade Tools LLC’s Protest Number 2809-2014-100532
Dear Port Director:
This is in response to your request for internal advice with regard to protest number 2809-2014-100532 (“protest”) filed by Alltrade Tools LLC (“Alltrade”), importer of record, on July 23, 2014. Alltrade protests the liquidation of its entries and argues that its entries deemed liquidated because they were liquidated more than six months after CBP received notice of the lifting of suspension. Our response follows.
FACTS:
On May 2, 2003, Alltrade filed entries xxx-xxxx922 and xxx-xxxx923 for pry bar sets from the People’s Republic of China (“PRC”) with U.S. Customs and Border Protection (“CBP”). The pry bar sets were purchased by Alltrade from Tianjin Machinery Import & Export Corporation (“TMC”). These entries were subject to antidumping duties (“ADD”) under Department of Commerce (“Commerce”) case A-570-202. See Heavy Forged Hand Tools, Finished or Unfinished, With or Without Handles From the People’s Republic of China, 56 Fed. Reg. 6,622 (February 19, 1991) (“Antidumping Order”).
The Department of Commerce (“Commerce”) published the final results for the period on September 19, 2005. See Heavy Forged Hand Tools, Finished or Unfinished, With or Without Handles From the People’s Republic of China, 70 Fed. Reg. at 54,897 (Sep. 19, 2005) (“Final Results”). In the Final Results, Commerce reviewed TMC for four products: 1) axes/adzes; 2) bars/wedges; 3) hammers/sledges; and 4) picks/mattocks, and Huarong Machinery Co., Ltd. (“Huarong”) for bars/wedges and axes/adzes. See 70 Fed. Reg. at 54,899. TMC was assigned the PRC-wide ADD rate for all four products and Huarong for its bars/wedges. See id. TMC and Huarong filed a complaint at the Court of International Trade (“CIT”). The CIT granted a preliminary injunction on November 3, 2005, which suspended liquidation of entries subject to the Final Results during the pendency of the litigation and Commerce issued instructions to CBP to suspend liquidation of entries. See Message No. 5319201 (Nov. 15, 2005).
The CIT determined the applicable rate for TMC’s pry bars on January 4, 2011, when the court sustained in part the 139.1% ADD rate for TMC’s bars/wedges. See Tianjin Mach. Imp. & Exp. Corp. v. United States, 752 F. Supp. 2d 1336 (Ct. Int’l Trade 2011) (“Tianjin III”). The CIT sustained Commerce’s Second Remand Results on June 14, 2012, which recalculated ADD rates of 32.15% for TMC’s picks/mattocks and 47.88% for Huarong’s bars/wedges. See Tianjin Mach. Imp. & Exp. Corp. v. United States, Court No. 05-00522, Slip Op. 12-83 (Ct. Int’l Trade June 14, 2012) (“Tianjin IV”). In response, Commerce issued its notice of a court decision not in harmony for the recalculated rates for TMC’s picks/mattocks and Huarong’s bars/wedges. See Heavy Forged Hand Tools, Finished or Unfinished, With or Without Handles From the People’s Republic of China: Notice of Court Decision Not in Harmony and Notice of Amended Final Results, 77 Fed. Reg. 39,997 (July 6, 2012) (“Timken Notice”). The litigation became final on August 13, 2012, 60 days after the final decision where no appeal was filed.
On March 20, 2014, CBP received instructions from Commerce in Message Number 4079308 to liquidate entries of bars/wedges from TMC during the POR under ADD case A-570-202 at the rate of 139.1%. See Message No. 4079308 (Mar. 20, 2014). CBP liquidated the subject entries at a rate of 139.31% on April 25, 2014, in accordance with the instructions set forth in Commerce’s message. On July 23, 2014, Alltrade filed this protest with CBP, challenging the liquidation of the subject entries. Alltrade argues that the entries’ liquidation was untimely in that it occurred more than six months after CBP received notice of the lifting of suspension of liquidation for the subject entries. Specifically, Alltrade asserts that the subject entries should have liquidated six months after Commerce issued notice in the Federal Register on July 6, 2012, or six months after the court decision became final and the court’s injunction dissolved on August 13, 2012. Accordingly, Alltrade argues that the subject entries should have deemed liquidated at the entered rate of 49.88% no later than February 13, 2013. The Port rejected Alltrade’s protest and application for further review on August 12, 2014, as non-protestable. On August 29, 2014, Alltrade filed a request to set aside the denial of the application for further review and to void the denial of a protest pursuant to 19 U.S.C. § 1515(c) and (d). In response, the Port granted it on September 16, 2014, and forwarded the protest to our office for additional guidance.
The Port requested guidance with respect to whether the entries were properly liquidated. The Port asserts that it timely liquidated the subject entries on April 25, 2014, in accordance with Commerce’s instructions in Message 4079308 that lifted suspension of the subject entries. Specifically, the Port argues that Commerce’s message served as notice, not the Timken Notice published in the Federal Register on July 6, 2012. The Port asserts that the Timken Notice is merely a notice to the public that the CIT’s decision is not in harmony with Commerce’s Final Results. The Port further claims that the Timken Notice was published prior to the end of the appeal period, and thus, this cannot constitute notice of lifting of the suspension of liquidation. Therefore, the Port asserts that this is non-protestable because it concerns a Commerce decision, not a CBP decision.
ISSUE:
Whether the entries deemed liquidated by operation of law.
LAW AND ANALYSIS:
We initially note that the instant protest was timely filed, within ninety days from the date of liquidation of the subject entries. We note that Section 2103 of the Miscellaneous Trade and Technical Corrections Act of 2004 amended 19 U.S.C. § 1514 to permit 180 days in which to file a protest, but that amendment is not applicable to this protest. See 19 U.S.C. § 1401 note (2006); Pub. L. No. 108-429, § 2103, 118 Stat. 2434, 2598 (2004). Section 2108 of subtitle B amended Section 1514 effective for goods entered or withdrawn from warehouse for consumption after December 18, 2004. Here, the merchandise was entered on May 2, 2003; therefore, the 90-day protest filing deadline is applicable. See 19 U.S.C. § 1514(c)(3) (2004) and 19 U.S.C. § 1401 note (2006); Pub. L. No. 108-429, § 2108, 118 Stat. 2434, 2598 (2004). Liquidation of Alltrade’s entries occurred on April 25, 2014, and this protest was timely filed on July 23, 2014, within ninety days. However, as CBP followed Commerce’s instructions, it acted in its ministerial role and this is not protestable, and as such, further review is denied. However, the Port is requesting guidance as to whether the entries were properly liquidated. Accordingly, we will treat this as an internal advice per 19 C.F.R. § 177.11.
Section 1514(a) of Title 19 states that only decisions made by CBP are protestable. Generally, antidumping duty rates correctly 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 TMC protests the liquidation, i.e., disputes the application by CBP of Commerce's liquidation instructions, it would be protestable. See Xerox Corp. v. United States, 289 F.3d 792, 795 (Fed. Cir. 2002). Therefore, if CBP properly applied Commerce’s instruction, this is not a matter that is protestable.
Alltrade protests CBP’s liquidation of the subject entries on April 25, 2014. It argues that CBP’s liquidation of the entries occurred more than six months after CBP received notification of the lifting of suspension of liquidation. Accordingly, it is necessary to determine whether the entries liquidated by operation of law. 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.
First, for deemed liquidation to occur, the suspension of liquidation must have been removed. See Fujitsu, 283 F.3d at 1364. In Fujitsu, the Court of Appeals for the Federal Circuit (“CAFC”) concluded that where liquidation is suspended pursuant to a court injunction, the suspension is removed when a “final court decision” is reached in the cause of action before the court, i.e., when the decision can no longer be appealed. Id. at 1377; see also, 19 U.S.C. § 1516a(e) (providing that entries suspended by court order shall be liquidated when there is a final court decision). Furthermore, the CIT does not have discretion to require liquidation before a case reaches its final conclusion in the appeals process, which ensures that liquidation of subsequent entries can occur pursuant to the conclusive decision. See Hosiden Corp. v. Advanced Display Mfrs. of Am., 85 F.3d 589, 591 (Fed. Cir. 1996). Alltrade’s entries on May 2, 2003, of pry bars manufactured by TMC were suspended by court-ordered injunction, during the pendency of the litigation concerning the Final Results.
The CIT issued its conclusive decision concerning the entries from Huarong and TMC in Tianjin IV when it sustained Commerce’s Second Remand Results on June 14, 2012. See Tianjin, Court No. 05-00522, Slip Op. 12-83. This decision became final sixty days later on August 13, 2012, when the time for petitioning the CAFC expired. See 28 U.S.C. § 2645(c); Fujitsu, 283 F.3d at 1379. At this time, the injunction dissolved and lifted the suspension of liquidation on Alltrade’s entries.
Second, once suspension is removed, CBP must have received unambiguous and public notice of the removal of suspension. For court-ordered suspension of liquidation, the court in Fujitsu stated that in cases where litigation comes to an end and the court-ordered suspension of liquidation is removed, it is important that “an unambiguous and public starting point for the six-month liquidation period” is known. See Fujitsu, 283 F.3d at 1382. The court in Fujitsu found that Commerce’s subsequent publication of the court’s ruling in the Federal Register was such an “unambiguous and public starting point,” and thus, constituted notice for purpose of 19 U.S.C. § 1504(d). Id. Applied to the instant case, notice of the lifting of suspension of liquidation occurred in Commerce’s Message Number 4079308, dated March 20, 2014. Message Number 4079308 was both public and unambiguous notice to CBP that the suspension of TMC’s bars/wedges was lifted. See HQ H150415 (July 12, 2013) (holding that where no Federal Register notice was published following a final court ruling affirming Commerce’s final results, CBP first received public and unambiguous notice of the lifting of the suspension when Commerce issued liquidation instructions).
Third, for deemed liquidation to occur, the entries at issue must not have been liquidated within six months of CBP receiving notice. See Fujitsu, 283 F.3d at 1376. In this case, CBP first received notice of the suspension of liquidation’s lifting for TMC’s bars/wedges from Commerce’s Message Number 4079308 on March 20, 2014. CBP then liquidated the subject entries on April 25, 2014, within sixty days of the March 20, 2014, notice. Thus, CBP properly liquidated the entries in accordance with the notice from Commerce and the entries did not deem liquidate.
Alltrade argues that the Timken Notice served as notice pursuant to 19 U.S.C. § 1504(d), however the Timken Notice neither provides notice of the lifting of suspension, nor is it unambiguous. The court-ordered injunction covered Huarong and TMC’s bars/wedges and axes/adzes, and TMC’s picks/mattocks and hammer/sledges for the pendency of the litigation concerning Commerce’s Final Results. See Message No. 5319201 (Nov. 16, 2005). Although the litigation concerning the ADD rate applicable to TMC’s bars/wedges concluded on January 4, 2011, in Tianjin III, the litigation concerning the remainder of entries subject to the injunction did not end until Tianjin IV on June 14, 2012. See Tianjin, 752 F. Supp. 2d 1336; and Tianjin, Court No. 05-00522, Slip Op. 12-83. Therefore, the injunction suspending litigation did not lift until August 13, 2012, sixty days after the litigation covered by the injunction ended. The Timken Notice was published in the Federal Register on July 6, 2012, before the injunction suspending liquidation dissolved on August 13, 2012. Id. Thus, the Timken Notice could not provide notice of the lifting of suspension as suspension had not yet been lifted. See 77 Fed. Reg. at 39,997. No prior form of notification served as public and unambiguous notice to CBP of the lifting of suspension, and thus, Message Number 4079308 served as “notice” pursuant to 19 U.S.C. § 1504(d). See HQ H150415 (July 12, 2013) (holding that where no Federal Register notice was published following a final court ruling affirming Commerce’s final results, CBP first received notice of the lifting of the suspension when Commerce issued liquidation instructions).
Alltrade also argues that because CBP published Tianjin III in the Customs Bulletin on March 9, 2011, CBP had notice and knowledge of the decision. However, publication of a decision in the Customs Bulletin is not sufficient notice for purposes of 19 U.S.C. § 1504(d). See Travelers Indem. Co. v. United States, 580 F. Supp. 2d 1330, 1334 (Ct. Int’l Trade 2008) (finding that CBP’s publication of a case in the Customs Bulletin was insufficient notice for purposes of deemed liquidation notice pursuant to 19 U.S.C. § 1504(d)). Publication in the Customs Bulletin does not constitute knowledge to the entire agency, nor is it unambiguous. Id.
Additionally, Alltrade cites Commerce’s policy of publishing clear liquidation instructions within fifteen days of its publication of final results. See Announcement Concerning Issuance of Liquidation Instructions Reflecting Results of Administrative Reviews, November 2010, available at http://enforcement.trade.gov/download/liquidation-announcement-20101109.html. However, it is inapplicable to the instant case because such policy does not alter whether notice was given in this case. Finally, Alltrade argues that Commerce signaled it would not appeal the CIT’s decision with the publication of the Timken Notice, and thus it published a final decision. However, this argument fails because the U.S. Government had a right to appeal for up to 60 days after the CIT issued its decision on June 14, 2012, in Tianjin IV and Commerce's publication of the Timken Notice did not waive this right. In fact, in the Timken Notice Commerce explained that it would issue liquidation instructions to CBP only if no appeal is filed or if filed, after it is upheld by the CAFC. 77 Fed. Reg. at 39,998. Therefore, the litigation did not become final until August 13, 2012, and Commerce Message Number 4079308 provided the earliest notice to CBP on March 20, 2014.
Alltrade’s entries were properly suspended and liquidated in accordance with Commerce’s instructions. CBP’s ministerial role is to follow liquidation instructions. In this case, CBP properly liquidated the entries on April 25, 2014, within six months of the notice from Commerce on March 20, 2014. See Message No. 4079308 (Mar. 20, 2014). Accordingly, CBP performed a ministerial role in liquidating the entries. As CBP acted in its ministerial capacity, it made no decision that forms a valid basis for review. Title 19 U.S.C. 1514(a) states that only decisions made by CBP are protestable and challenges to Commerce’s rate calculation and liquidation instructions are not protestable. Therefore, if CBP acts in its ministerial capacity and follows Commerce’s instructions, there is no decision that is made by CBP that would be protestable. See, e.g., HQ H028635 (Mar. 18, 2011) (explaining that only matters that challenge decisions by CBP are protestable). Thus, this matter is not a valid basis for further review.
HOLDING:
Based on the above, Alltrade’s entries were properly liquidated and did not deem liquidate by operation of law. Accordingly, the protest failed to raise a protestable issue.
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