OT:RR:CTF:EPDR H295447 ND
Africa Bell, Center Director
Base Metals
Center of Excellence and Expertise
U.S. Customs and Border Protection
909 S.E. 1st Avenue, Suite 980
Miami, Florida 33131
Attn: Anthony Kennedy, Senior Import Specialist
Re: Application for Further Review of Protest Number 520116100046; Aluminum Extrusions from the People’s Republic of China; Antidumping Duties; A-570-967; Countervailing Duties; C-570-968; 19 U.S.C. § 1677g(a); Interest
Dear Center Director:
The purpose of this decision is to address the application for further review (“AFR”) of protest number 520116100046, filed by All Points Industries, Inc. (“All Points”) on April 13, 2016, regarding the assessment of antidumping duties (“ADD”) and countervailing duties (“CVD”) pursuant to the ADD and CVD orders in cases A-570-967 and C-570-968 (collectively “the Orders”).
FACTS:
All Points entered entry XXX-XXXX720-5 of aluminum extrusion cleats (“cleats”) from the People’s Republic of China (“China”) on February 14, 2014. All Points does not dispute that its entry was subject to ADD in case A-570-967 and CVD in case C-570-968 pursuant to the Orders. See Aluminum Extrusions from the People’s Republic of China: Antidumping Duty Order, 76 Fed. Reg. 30,650 (May 26, 2011); Aluminum Extrusions from the People’s Republic of China: Countervailing Duty Order, 76 Fed. Reg. 30,653 (May 26, 2011). However, the entry summary (CBP Form 7501) did not list ADD or CVD when submitted and no ADD or CVD was deposited at entry. According to the Automated Commercial Environment (“ACE”), the exporter of the cleats was Tonglu Fenfei Industry Co. (“Tonglu”).
U.S. Customs and Border Protection (“CBP”) issued a Notice of Action (CBP Form 29) on May 19, 2014, informing All Points that its entry was subject to the ADD order on aluminum extrusions from China in case A-570-967. Additionally, CBP demanded cash deposits of ADD at the China-wide rate of 33.28 percent ad valorem in accordance with the cash deposit instructions from the U.S. Department of Commerce (“Commerce”) in effect on the date of entry. See Commerce Message Number 1173304 (June 22, 2011). The CBP Form 29 made no mention of the CVD order in case C-570-968. According to ACE, CBP changed the entry type to “03” consumption entry subject to ADD and CVD and subsequently suspended liquidation of the entry on May 24, 2014.
After receiving the Notice of Action, All Points submitted a scope ruling request to Commerce on July 18, 2014, to determine whether the imported cleats were subject to the Orders on aluminum extrusions from China. See Commerce Message Number 5044308 (Feb. 13, 2015). Commerce initiated a formal scope inquiry on October 16, 2014. Id. Commerce issued a final scope determination concluding that the cleats imported by All Points were within the scope of the ADD and CVD orders on April 2, 2015. See Commerce Message Number 5097303 (Apr. 7, 2015). Commerce further directed CBP to continue to suspend liquidation of the subject entry. Id.
Commerce subsequently directed CBP to liquidate entries of cleats from China entered for consumption between January 1, 2014, and December 31, 2014, at the cash deposit rate in effect on the date of entry pursuant to the CVD order in C-570-968. Commerce Message 5202301 (July 21, 2015). Commerce Message Number 2355304 (Dec. 20, 2012), relevant to CVD order C-570-968, provided that “[f]or shipments of aluminum extrusions from the People’s Republic of China entered, or withdrawn from warehouse, for consumption on or after December 10, 2012, CBP shall require, for such entries, a cash deposit” for “all-others” of 137.65 percent.
On October 20, 2015, All Points filed a prior disclosure with CBP which included the protested entry. In its prior disclosure, All Points acknowledged it submitted an inaccurate entry summary that failed to reflect that the entry was subject to ADD and CVD. On November 9, 2015, All Points tendered a check for both the ADD and CVD duties it believed was due for several entries, one of which is the subject of this protest. The ADD duty rate was calculated at 33.28% and CVD rate at 7.37%. No interest was included with the tender.
On December 1, 2015, Commerce published the final results of administrative review. See Aluminum Extrusions from the People’s Republic of China: Final Results of Antidumping Duty Administrative Review; 2013-2014, 80 Fed. Reg. 75,060 (Dec. 1, 2015). Commerce then directed CBP to assess a China-wide ADD rate of 33.18% for shipments of aluminum extrusions entered for consumption between May 1, 2013, and April 30, 2014, for case A-570-967. Commerce Message Number 5355305 (Dec. 21, 2015). Commerce further directed CBP to “pay interest on overpayments or assess interest on underpayments of the required amounts deposited as estimated antidumping duties. Id. On December 23, 2015, Commerce instructed CBP to apply the ADD liquidation instructions in Message 5355305 “[f]or all shipments of cleats . . . . imported by All Points . . . . during the period 05/01/2013 through 04/30/2014 . . . .” which includes the entry at issue in this protest. Commerce Message Number 5357302. On March 9, 2016, Commerce corrected Message Number 5355305 with Message 6069307, therein once again directing CBP to assess a China-wide ADD rate of 33.18% for shipments of aluminum extrusions entered for consumption between May 1, 2013, and April 30, 2014. Commerce Message Number 6069307.
On March 11, 2016, CBP liquidated entry XXX-XXXX720-5 and (1) refunded normal duties, (2) assessed ADD at 33.18% with interest, and (3) assessed CVD at 137.65% with interest. All Points received a bill from CBP for ADD interest and CVD with interest. All Points filed protest 520116100046 on April 13, 2016, disputing the assessment of CVD and interest on both ADD and CVD. All Points alleges that the correct amount of ADD and CVD was already paid with the completion of the prior disclosure and subsequent tendered check.
ISSUE:
Whether CBP liquidated All Points’ entry in accordance with Commerce’s instructions, and if so, was the amount due tendered with the prior disclosure?
LAW AND ANALYSIS:
It is the opinion of your office that this protest meets the criteria for further review. We agree and are of the opinion that this protest involves questions of law and fact, upon which we have not previously ruled. 19 C.F.R. § 174.24(b).
We note that the instant protest was timely filed. Pursuant to 19 U.S.C. § 1514(c)(3)(A), a party must file a protest within 180 days after the date of liquidation. CBP liquidated the entry on March 11, 2016. All Points filed its protest on April 8, 2016, within the 180-day deadline. Additionally, All Points amended its protest on May 9, 2016. This amendment was timely filed within 180 days of the date of liquidation. 19 U.S.C. § 1514 (c)(1)(D).
Once Commerce instructs Customs to liquidate entries, “Customs merely follows Commerce’s instructions in assessing and collecting duties.” Mitsubishi Elecs. Am. Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). Customs cannot “modify Commerce’s determinations, their underlying facts, or their enforcement.” Id. (quoting Royal Bus. Machs. Inc. v. United States, 507 F. Supp. 1007, 1014, n.18 (Ct. Int’l Trade 1980)). Customs plays a “merely ministerial role in liquidating antidumping duties.” Id. at 977. “Customs should do no more than enact the intentions of Commerce.” See e.g., Shinyei Corp. of Am. v. United States, 2011 Ct. Int’l Trade LEXIS 65, *10 (June 15, 2011) (requiring Customs to consider documentation submitted at protest evidencing a sale, which occurred after entry, to an ultimate “sold to” customer listed in Commerce instruction).
All Point alleges that the correct amount of ADD and CVD was already paid with the completion of the prior disclosure and subsequent tendered check. CBP’s March 11, 2016, liquidation assessed CVD on the entry correctly at 137.65% with interest as directed by Messages 5202301 and 2355305 for case C-570-968. See Commerce Message Numbers 5202301 (July 21, 2015), 2355305 (Dec. 20, 2012). However, All Points’ tender included CVD at 7.37%. Accordingly, All Points owes an additional 130.28% of the entered value in CVD, plus interest, as explained below.
CBP’s March 11, 2016, liquidation further assessed ADD at a rate of 33.18% pursuant to Commerce Message Number 5355305 (Dec. 21, 2015). See also Commerce Message Numbers 5357302 (Dec. 23, 2015), 6069307 (Mar. 9, 2016). CBP’s liquidation assessed the correct ADD rate in accordance with these instructions. All Points’ tender included ADD at 33.28%. Accordingly, All Points does not owe any additional ADD. However, we note that All Points paid .10% more in ADD than was required.
All Points’ tender, though, did not include interest and the payment of interest is required by statute. 19 U.S.C. § 1677g(a) states that
interest shall be payable on overpayments and underpayments of amounts deposited on merchandise entered . . . . for consumption on and after–
the date of publication of a countervailing or antidumping duty order . . . .
“Thus, § 1677g(a), requires payment of interest on the difference between deposited amounts of estimated duties and final assessed duties.” Timken Co. v. United States, 37 F.3d 1470 (Fed. Cir. 1994); see also H230144 (Mar. 9, 2005). “Amounts deposited” in 19 U.S.C. § 1677g(a) refers solely to cash deposits of estimated duties provided under § 1673e(a)(3) [ADD order] and § 1671(e)(a)(4) [CVD order]. Id. In addition, 19 C.F.R. § 351.212(e) states that CBP will “calculate interest for each entry on or after the publication of the order from the date that a cash deposit is required to be deposited for the entry through the date of liquidation of the entry.” 19 U.S.C. § 1677h(b) further states that the rate of interest payable, under 19 U.S.C. § 1677g(a) for any period of time, is the rate established by 26 U.S.C. § 6621.
Commerce published the Orders prior to the February 14, 2014, date of entry of All Points’ entry. See Aluminum Extrusions from the People’s Republic of China: Antidumping Duty Order, 76 Fed. Reg. 30,650 (May 26, 2011); Aluminum Extrusions from the People’s Republic of China: Final Affirmative Countervailing Duty Determination, 76 Fed. Reg. 18,521 (Apr. 4, 2011). All Points should therefore have deposited ADD at 33.18% and CVD at 137.65% at the time of entry as directed by Commerce in the Orders. Accordingly, interest on ADD at 33.18% and CVD at 137.65% must be assessed for the entry from February 14, 2014, the date of entry, to March 11, 2016, the date of liquidation of the entry.
Additionally, pursuant to 19 U.S.C. § 1505(d), when a bill is not paid in full within 30 days after the date of liquidation, “any unpaid balance shall be considered delinquent and bear [post-liquidation] interest by 30-day periods.” Therefore, All Points is required to pay post-liquidation interest in 30-day periods since the date of liquidation on the remaining CVD balance, and interest will continue to accrue until the balance is paid in full.
HOLDING:
The protest should be DENIED. CBP properly liquidated All Points’ entry in accordance with the relevant liquidation instructions from Commerce.
You are instructed to notify the Protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, or other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division