LIQ-4-01 OT:RR:CTF:ER W231346 KBR
Area Port Director
U.S. Customs and Border Protection
1000 Second Avenue
Seattle, WA 98104
RE: Protest 3001-06-100065
Dear Area Port Director:
The above referenced protest (3001-06-100065) concerning antidumping duties on imported cans of crushed pineapple was forwarded to this office for review. We have reviewed the arguments presented by protestant, Purcell International, and your office. Our decision follows.
FACTS:
Purcell International (“Purcell”) imported cans of crushed pineapple from Vita Food Factory (1989) Limited (“Vita”), Bangkok, Thailand, entry number 595-23838205. The crushed pineapple from Vita was subject to antidumping duties. See 70 FR 61432 (October 24, 2005). The Entry Summary, CF 7501, shows that Protestant believed that they should pay antidumping duty of 1.94%. At entry, Protestant did not file an Antidumping Reimbursement Statement. Customs and Border Protection (“CBP”) issued a CF 29 dated November 21, 2005, instructing Protestant to file the Antidumping Reimbursement Statement within 20 days or that the entry would be liquidated with double the antidumping duties. Protestant filed an Antidumping Reimbursement Statement November 25, 2005. The Antidumping Statement as submitted, was incomplete because neither the word, “have” nor the words “have not” were circled with respect to whether the importer had entered into an agreement for the payment of the antidumping duties by the manufacturer, producer or seller. CBP liquidated the entry on December 30, 2005, charging Protestant double antidumping duties at a rate of $0.0494/kg. Protestant filed a CF 19 Protest received February 3, 2006, and submitted an Antidumping Reimbursement Statement with the words “have not” circled.
ISSUES:
Was a proper Antidumping Reimbursement Statement timely filed by Protestant?
What is the proper calculation for antidumping duties?
LAW AND ANALYSIS:
Initially we note that this protest is timely filed within 90 days after liquidation. Concerning the role of CBP in liquidating antidumping duties, under the applicable statutes, the Department of Commerce, not CBP, has the authority to calculate and determine antidumping duties. In Mitsubishi Electronics v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994) the court stated:
Customs merely follows Commerce’s instructions in assessing and collecting duties. Customs does not determine the “rate and amount” of antidumping duties und 19 U.S. C. § 1514(a)(2). Customs only applies antidumping rates determined by Commerce. Further, Customs has a merely ministerial role in liquidating antidumping duties under 19 U.S.C. § 1514(a)(5).
Moreover, antidumping duty rates will be doubled upon liquidation because of the application of the presumption that the importer had been reimbursed for the antidumping duties. See 19 CFR § 351.402(f)(2) and (3); HQ 228840 (August 21, 2000). The relevant Department of Commerce regulations (19 CFR § 351.402(f)(2)), provide that the importer must file a certificate (Antidumping Reimbursement Statement) prior to liquidation with CBP. While a certificate was filed prior to liquidation, that certificate was incomplete.
The purpose of the Antidumping Reimbursement Statement is to inform CBP whether the importer entered into an agreement or understanding for the payment or refunding of the antidumping duties by the manufacturer, producer, seller or exporter. This designation is made by circling the “have” or “have not” words on the form. It is a very basic and straightforward form. In this instance, even after CBP notified Protestant that they did not submit the required form, Protestant did not circle either “have” or “have not” on the form prior to liquidation. The form as submitted did not provide the basic information for which it was created.
The courts have determined that an incomplete form does not satisfy the requirement for filing. In DMV USA, Inc. v. United States, 25 CIT 970, 978 (1951), the court, stated that an incomplete form:
was not “in the form prescribed by the Secretary,”… since an incomplete application might not contain “an element of the application … reasonably regarded as necessary to enable the agency to process the claim.” …. (“To say that there has been a substantial compliance would indicate that much of what is contained in the required certificate meaningless. [However, the certificate as presented here] affords no information to the officers of customs as a basis for an investigation.”) As a result of the applicant’s failure to file the application “in the form prescribed,” the Federal Circuit held that the applicant did not gain the benefit of his initial filing date.
Quoting Fleishman v. West, 138 F.3d 1429 (Fed Cir. 1998). In this instance, the Antidumping Reimbursement Statement submitted by Protestant did not provide the basic information for which the form was created, thereby making the Statement as submitted, worthless.
Protestant eventually submitted a properly completed Antidumping Reimbursement Statement when Protestant filed a protest. However, a properly completed Antidumping Reimbursement Statement which is filed late does not comply with the regulatory requirement set forth in 19 CFR § 351.402 which requires a certificate to be filed before liquidation. The failure to comply with the requirement in 19 CFR § 351.402(f)(2) triggers the presumption contained in 19 CFR § 351.402(f)(3), which provides that a failure to file the certificate results in a presumption that the exporter or producer paid or reimbursed the antidumping duties. HQ 228840 (August 21, 2000); HQ 227609 (February 24, 1998); HQ 229859 (December 31, 2003). Further, although Protestant claims it was a clerical error to leave the form incomplete, Protestant did not provide any evidence concerning the error nor is the nature of the error manifest from the record. See HQ 226774 (May 24, 1996); HQ 228840 (August 21, 2000).
Protestant also argues that the calculation of the amount of antidumping duties is incorrect. Protestant believes that the antidumping duties should be assessed at a rate of 1.94% of value (which would be doubled for not filing a timely completed Antidumping Reimbursement Statement). However, CBP charged Protestant $0.0494/kg as an antidumping duty (which CBP then doubled for not filing a timely completed Antidumping Reimbursement Statement).
The amount of antidumping duties CBP is to collect is determined by the Department of Commerce not CBP. HQ 229859 (December 31, 2002) quoting Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994), explained:
The court also found that Commerce calculates the antidumping duty, issues the order, and directs Customs to collect the estimated duties:
Customs merely follows Commerce’s instructions in assessing and collecting duties. Customs does not determine the ‘rate and amount’ of antidumping duties under 19 U.S.C. § 1514(a)(2). Customs only applies antidumping rates determined by Commerce. Further, Customs has a merely ministerial role in liquidating antidumping duties under 19 U.S.C. § 1514(a)(5). Customs cannot ‘modify . . . [Commerce’s] determinations, their underlying facts, or their enforcement."
In the instant protest, Commerce instituted case number A-549-813-011, antidumping order for VITA Food Factory (1989) Limited. On November 13, 2003, the antidumping duty rate was 1.94%. After review (See 70 Fed. Reg. 45651 (August 8 , 2005); 70 Fed. Reg. 61432 (October 24, 2005)), Commerce issued Message No. 5313203, dated November 9, 2005. This Message directed CBP:
For all shipments of canned pineapple fruit from Thailand produced and exported by VITA Food Factory (1989) Co., LTD. (VITA) (A-549-813-011), imported by, or sold to, the firms listed below, entered or withdrawn from warehouse for consumption during the period 07/01/2003 through 06/30/2004, assess an antidumping liability equal to the per-unit amount indicated below for the relevant companies: ….Purcell International 0.0494 [ $ amount per kg].
Therefore, since the instant articles were entered on November 18, 2003, CBP is bound by the antidumping duty rate provided by Commerce in Message 5313203, for Protestant. The duty rate in Message 5313203 for Protestant is $0.0494/kg. As discussed above, this amount will then be doubled due to Protestant not filing a timely completed Antidumping Reimbursement Statement.
HOLDING:
Double antidumping duties were properly charged due to the failure of Protestant to file a timely completed Antidumping Reimbursement Statement. The correct amount of antidumping duty was charged at $0.0494/kg, doubled, pursuant to Department of Commerce Message 5313203.
You are instructed to DENY the protest. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, 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