HQ 114950 - Internal Advice; entry summary rejections, antidumping duty deposits - United States International Trade Commision Rulings

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HQ 114950

February 29, 2000

ENT-1-01-RR:IT:EC 114950 CC

CATEGORY: ENTRY

Port Director
Los Angeles-Long Beach Seaport
300 S. Ferry Street
Terminal Island, CA 90731

RE: Internal Advice; entry summary rejections, antidumping duty deposits

Dear Madam:

This is in reference to your request for internal advice, dated January 21, 2000, concerning the rejection of entry summaries covering antidumping duty deposits on crawfish from China.

FACTS:

This internal advice concerns 7 entries of crawfish from China made by Worldwide Link, Inc. (“Worldwide”). The supplier of the crawfish was Huaiyin Factory No. 30. The entry summary dates for the subject entries are the following: August 6, 1999 (1 entry); August 9, 1999 (3 entries); August 10, 1999 (2 entries), and August 18, 1999 (1 entry). In accordance with an antidumping duty order, published in the Federal Register by the Department of Commerce on September 15, 1997, 62 FR 48218, crawfish exported by the Huaiyin Foreign Trade Corporation were subject to antidumping duty cash deposits in the amount of 91.50%, case number A-570-848-003. In accordance with that rate, the importer made such cash deposits at the time of entry for the subject merchandise. On September 3, 1999, the Department of Commerce issued a clarification through Customs Headquarters to field offices, concerning the Huaiyin Foreign Trade Corporation. From that message it was made clear that the Huaiyin Foreign Trade Corporation did not include Huaiyin Factory No. 30. Based on the clarification, you issued a Notice of Action to the importer on Customs Form (CF) 29, stating that since the exporter was not eligible for the 91.50% deposit rate for the Huaiyin Foreign Trade Corporation, the China-wide cash deposit rate of 201.63%, case number A-570-848-000, was applicable to crawfish imported by Worldwide. You issued an entry summary reject notice on September 30, 1999, covering all of the entries except the one made on August 18, 1999. For that entry, a reject notice was issued dated October 5, 1999. Those notices required that the entries be resubmitted with cash deposits of 201.63%.

On October 28, 1999, counsel for the importer wrote to you, stating that the subject entries could not be rejected, and requesting that the entries be accepted as originally filed. In addition, counsel requested that if you contemplated a contrary decision, that you seek internal advice from Headquarters. In a letter dated November 8, 1999, the Chief, Trade Operations Branch 1 responded, explaining the reasons for rejecting the entry summaries and for requiring additional deposits. On November 22, 1999, counsel for the importer wrote to you, requesting that this matter be forwarded to Headquarters for internal advice. You reiterated the basis for rejecting the entry summaries in a letter dated December 9, 1999. In a letter dated December 16, 1999, counsel for the importer requested again that the matter be forwarded to Headquarters for internal advice. In your memorandum of January 21, 2000, you requested internal advice.

ISSUE:

Whether the entry summary rejection notices were erroneous.

LAW AND ANALYSIS:

19 CFR § 141.61(c) provides the following:

The entry summary filed for merchandise subject to an antidumping or countervailing duty order shall include the unique identifying number assigned by the Department of Commerce, International Trade Administration. Any entry summary filed for merchandise subject to an antidumping or countervailing duty order not containing the identifying number shall be rejected.

19 CFR § 141.64 provides the following:

Entry and entry summary documentation shall be reviewed before acceptance to ensure that all entry and statistical requirements are complied with and that the indicated values and rates of duty appear to be correct. If any errors are found, the entry and the entry summary documentation shall not be considered to have been filed in proper form and shall be returned to the importer for correction.

19 CFR § 141.103 provides the following:

Estimated duties shall be deposited in an amount deemed necessary by the port director to sufficiently cover the prospective duties on each item being entered or withdrawn.

Customs Directive 099 3550-067, dated February 2, 1994, Entry Summary Acceptance and Rejection Policy, provides guidelines for uniform acceptance and rejection of entry summaries for Customs. Concerning the time limits for entry summary rejections, this directive states the following:

Non-ABI entry summaries may be rejected at any time up to 30 calendar days following the summary filing date. ABI/A, ABI/S or ABI/N entry summaries cannot be rejected after 10 working days following the presentation date for all errors, including Census errors. The only exception to these time frames is for all entry summaries subject to anti-dumping and/or countervailing duty cases (ABI and non-ABI). These summaries may be rejected up to 60 days without supervisory approval, and up to 90 days with Headquarters approval.

After these dates, an entry summary is considered “accepted” for the purpose of 19 CFR 141.64 and may no longer be rejected

Counsel for the importer makes three major arguments as to why Customs cannot reject the subject entry summaries. First, rejecting the entry summaries would constitute retroactive application of the clarification message. Second, there is no basis in 19 CFR § 141.64 or Customs Directive 099 3550-067 for rejecting the entry summaries. Third, the issuance of the rejection notices was inappropriate in light of the Notice of Action issued.

Counsel argues that since the clarification message occurred after the subject entries were made, rejecting the entry summaries would constitute retroactive application of the message. The clarification message of September 3, 1999, effectively changed the cash deposit from 91.50% to 201.63% for entries of crawfish in which Huaiyin Factory No. 30 was the exporter. The clarification message stated that it applied to all such entries made after March 26, 1996. Consequently, the message was applicable to the subject entries. Since Customs Directive 099 3550-067 permits rejection of entry summaries subject to antidumping duties up to 60 days after they are presented, it was appropriate for Customs to reject the subject entries.

Counsel’s second argument is that there is no basis provided for Customs rejecting the entry summaries. Counsel states that 19 CFR § 141.64 provides for rejections for errors in the correct duty rate, value, classification or statistical errors. Since such errors were not present at the time of entry, counsel argues, Customs has no basis in which to reject the subject entries. In addition, counsel states that none of the errors listed in Customs Directive 099 3550-067 as a basis for rejecting entry summaries applies to the subject entries.

19 CFR § 141.64 permits Customs to reject entries “if any errors are found.” The importer’s not providing the correct cash deposit is an error. In addition, 19 CFR § 141.61(c) provides that the unique antidumping duty number assigned by the Department of Commerce shall be included on the entry summary or it will be rejected. The number provided by the importer was A-570-848-003, which applied to Huaiyin Foreign Trade Corporation. The correct number for the subject entries was A-570-848-000, the China-wide rate, which included the Huaiyin Factory No. 30. Consequently, providing the wrong antidumping number, as occurred in this case, is an error that can lead to the rejection of the entry summaries. We acknowledge that at the time of entry, the clarification message had not yet been issued and the antidumping duty number provided by the importer appeared to be correct. But the use of the wrong number still constituted an error, and because 60 days had not since passed since the time the entry summaries were filed, it could be corrected by the entry summaries being rejected and resubmitted in accordance with Customs Directive 099 3550-067.

Counsel’s third argument is that the issuance of the Notice of Action showed that the subject entry summaries had been accepted and could not be rejected. Counsel for the importer relies on 19 CFR § 152.2 which states the following:

If the port director believes that the entered rate or value of any merchandise is too low, or if he finds that the quantity imported exceeds the entered quantity, and the estimated aggregate of the increase in duties on that entry exceeds $15, he shall promptly notify the importer on Customs Form 29, specifying the nature of the difference on the notice. Liquidation shall be made promptly and shall not be withheld for a period of more than 20 days from the date of mailing of such notice unless in the judgment of the port director there are compelling reasons that would warrant such action.

Liquidation for the subject entries had been suspended because they were subject to antidumping duties. In addition, the notice states that the 201.63% rate not only applied to the subject entries, but also applied to prior entries and future entries. Thus the notice was not issued pursuant to 19 CFR § 152.2 to show that the subject entries had been accepted and would be liquidated no later than 20 days from the date of the notice at the 201.63%. Instead, the purpose of the notice appears to inform the importer of the increased rate for antidumping duties and that a 201.63% cash deposit was and would be required for all applicable entries, present and future.

Finally, we reiterate that Customs Directive 099 3550-067 makes it clear that
all entry summaries subject to antidumping duties may be rejected up to 60 days after they are presented. In addition, that directive makes it clear that such entry summaries are not accepted until that time period has passed. Consequently, based on that directive and the applicable regulations, we find that rejection of the subject entry summaries was proper.

HOLDING:

The subject entry summary rejection notices were proper.

You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Jerry Laderberg

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