HQ 229391 - Protest No. 4503-01-100032; Antidumping Duties; 19 U.S.C. 1514; 19 U.S.C. 1504(d) - United States International Trade Commision Rulings

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HQ 229391

September 5, 2002

RR:CR:DR 229391 IDL

CATEGORY: PROTEST

U.S. Customs Service
Att: Jim Roberts
4477 Woodson Road
Room 200
St. Louis, MO 63134

RE: Protest No. 4503-01-100032; Antidumping Duties; 19 U.S.C. 1514; 19 U.S.C. 1504(d)

Dear Mr. Roberts:

This is in response to your correspondence concerning GBS Industries, Inc., of Old Bridge, New Jersey, Protest No. 4503-01-100032.

FACTS:

Protestant, GBS Industries, Inc. (“GBS”), imported Brake Drum Rotors from China, exported by Zibo Luzhou Automobile Parts Co., Ltd. (“ZLAP”). On January 14, 1999, Entry No. 605-xxxx380-9 (“Entry 380-9”) was entered at the port of St. Louis, MO. On February 23, 1999, Entry No. 605-xxxx629-9 (“Entry 629-9”) was entered at the same port. Upon entry, the port suspended liquidation and required of ZLAP a deposit of estimated antidumping duty at the rate of 43.32%. On July 20, 2001, after Commerce lifted suspension of liquidation, the port liquidated the subject entries. On October 2, 2001, GBS filed protest against the liquidations at the antidumping duty rate of 43.32%.

On April 17, 1997, the Department of Commerce (“Commerce”) had published in the Federal Register (62 FR 18740) on Case A-570-846, Notice of Antidumping Duty Order: Brake Rotors from the People’s Republic of China (“Order”). That Order established an “all others” rate of 43.32% for companies such as ZLAP, which did not have a separate rate.

On December 4, 1997, Commerce had published in the Federal Register (62 FR 64206) on Case A-570-846, Brake Rotors From the People’s Republic of China: Initiation of New Shipper Antidumping Duty Administrative Reviews.

On February 4, 1998, Commerce issued to Customs Deposit Instructions For New Shipper Review of Brake Rotors From the People’s Republic of China (“Deposit Instructions”), on Case A-570-846, via Message No. 8035111, which covered brake rotors from China exported by ZLAP:

For shipments of Brake Rotors from the People’s Republic of China entered, or withdrawn from warehouse, for consumption in the U.S. on or after December 4, 1997, a bond or other security deposit is permitted, at the importer’s option, for the following new manufacturers/exporters:

[ZLAP]..A-570-846-026..43.32%

The option of a bond in lieu of a cash deposit will remain in effect for [ZLAP] until publication of the Final Results of the New Shipper Administrative Review.

On September 29, 1998, Commerce had published in the Federal Register (63 FR 51895) on Case A-570-846, Brake Rotors From the People’s Republic of China: Preliminary Results of Antidumping Duty New Shipper Administrative Review (“Preliminary Results”).

On January 14,1999 and February 23, 1999, ZLAP entered the subject merchandise. GBS deposited 0.00% cash deposit pursuant to the Preliminary Results. The CF 7501’s for each entry listed Case A-570-846-026 in column 30 and referenced the rate of 43.32% in column 34. However, the sums represented were not deposited.

On March 1, 1999, Commerce published in the Federal Register (64 FR 9972), on Case A-570-846, Brake Rotors From the People’s Republic of China: Final Results of Antidumping Duty New Shipper Administrative Review (“New Review”). The New Review indicated the following:

[T]he following deposit rates shall be required for merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of these final results of administrative review (1) The cash deposit rates for ZLAP will be the rates indicated above [0.00%]

On October 30, 2000, Commerce published in the Federal Register (65 FR 64664), on Case A-570-846, Brake Rotors From the People's Republic of China: Final Results of Third New Shipper Review and Final Results and Partial Rescission of Second Antidumping Duty Administrative Review (“Final Results and Partial Rescission”), covering the period April 1, 1998 through March 31, 1999. The Final Results and Partial Rescission indicated that Commerce has “rescinded the administrative review with respect toZLAPbecause [it] withdrew [its] request for review and no other interested party requested a review of these companies.” Further, the Final Results and Partial Rescission indicated that “[f]or entries made by ZLAP, Customs shall assess ad valorem duties at the rates applicable at the time of entry.”

On December 14, 2000, Commerce issued to Customs liquidation instructions for Case A-570-846, Message No. 0349201, which covered Brake Rotors From China, exported by ZLAP, entered or withdrawn from warehouse, for consumption during the period April 1, 1998 through March 31, 1999. Those instructions directed Customs to assess antidumping duties at the cash deposit rate required at the time of entry. Commerce advised that the liquidation instructions constituted the immediate lifting of suspension of liquidation of entry summaries for the merchandise and period specified.

On June 7, 2001, the port issued a Notice of Action on Entries No. 380-9 and 629-9, explaining that, per Message No. 0349201, antidumping duties are to be assessed at the cash deposit rate in effect on the date of entry summary. On July 20, 2001, the port liquidated Entries 380-9 and 629-9 at the antidumping duty rate of 43.32%.

On October 2, 2001, GBS filed Protest No. 4503-01-100032. GBS argues that the deposit rate at the time of entry was 0.00%. The port argues that the deposit rate at the time of entry was 43.32%.

ISSUES:

(1) Whether Customs correctly assessed antidumping duties?

(2) Whether the liquidation by Customs of the subject entries on July 20, 2001 was barred by a prior liquidation by operation of law under 19 U.S.C. 1504(d)?

(3) Whether the entries are now subject to 0.00% antidumping duties?

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed under the statutory and regulatory provisions for protests (see 19 U.S.C. § 1514 and 19 CFR Part 174). The entries were liquidated on July 20, 2001, and the subject protest was filed on October 2, 2001.

Further, we note that the issues in the instant case are protestable under 19 U.S.C. 1514, because Customs implementation of Commerce’s instructions for assessing antidumping duties is protested, not the antidumping determination itself. In order to protest a decision under 1514, that decision must be made by Customs. See 1514(a); see also Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002), reversing Xerox, 118 F.Supp. 2d 1353, Ct. Int’l Trade (October 19, 2000); Nichimen America, Inc. v. United States, 938 F.2d 1286 (1991 Fed. Cir.); HQ 224650 (November 25, 1994).

In contrast, the Court of International Trade held that a protestant may not challenge facts relating to determinations by Commerce in a 1514 protest action. See ABC International Traders v. United States, CIT Slip. Op. 95-97 (May 23, 1995); HQ 224623. Generally, we have held that the role of Customs in the antidumping process is "... simply to follow Commerce's instructions in collecting deposits of estimated duties and in assessing antidumping duties, together with interest, at the time of liquidation". HQ 225382 (July 3, 1995); HQ 226263 (December 10, 1996).

Issue (1)
Whether Customs correctly assessed antidumping duties?

The liquidation instructions issued by Commerce directed Customs to assess antidumping duties at the cash deposit rate required at the time of entry. On February 4, 1998, prior to the time of the entries on January 14 and February 23, 1999, the cash deposit rate in effect was 43.32%, pursuant to the Order published on April 17, 1997 (62 FR 18740) and the Deposit Instructions (Message No. 8035111). That rate became effective for entries dated on or after December 4, 1997.

On March 1, 1999, the date of publication of the New Review, Commerce required of ZLAP a new cash deposit rate of 0.00% for entries made on or after March 1, 1999. However, since the subject entries were entered prior to March 1, 1999, the new cash deposit rate of 0.00% did not apply to the subject entries. Thus, the deposit rate in effect at the time of entry was 43.32%, pursuant to the Deposit Instructions of February 4, 1998. Further, the importer listed both the dumping case number and the deposit rate of 43.32% on the entry (CF 7501).

Therefore, Customs correctly assessed antidumping duties.

Issue (2)
Whether the liquidation by Customs of the subject entries on July 20, 2001 was barred by a prior liquidation by operation of law under 19 U.S.C. 1504(d)?

Notwithstanding our holding in Issue (1) above, the Court of International Trade, interpreting 19 U.S.C 1504(d) in International Trading Co. v. United States, 110 F.Supp. 2d 977; Slip Op. 00-83 (July 14, 2000); Slip Op. 00-1577 (Fed. Cir.) March 1, 2002, aff’d, see HQ 229134 (May 14, 2002), held that suspension on liquidation for the subject entries was removed following the publication of notice of final results in the Federal Register, and was sufficient notice under section 1504(d) (1993) for the 6-month liquidation period to run.

(d) Removal of suspension
[W]hen a suspension required by statute or court order is removed, the Customs Service shall liquidate the entrywithin 6 months after receiving notice of the removal from the Department of Commerce. Any entrynot liquidated by the Customs Service within 6 months after receiving such notice shall be treated as having been liquidated at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer or record. 19 U.S.C. 1504(d).

In this case, the subject entries were made on January 14 and February 23, 1999. On October 30, 2000, Commerce published the Final Results and Partial Rescission. Commerce instructed Customs to “assess ad valorem duties at the rates applicable at the time of entry.” In addition, liquidation instructions were issued December 14, 2000, on Case A-570-846 for entries made during the period from April 1, 1998 to March 31, 1999.

Under the court’s interpretation of 19 U.S.C. 1504(d) in International Trading, Customs was required to liquidate the subject entries 6 months after Commerce published the Final Results and Partial Rescission (i.e., not later than April 30, 2001), as that notice rescinded the administrative review of ZLAP. Customs failed to liquidate the subject entries until July 20, 2001.

Therefore, Entries 380-9 and 629-9 liquidated by operation of law on April 30, 2001, pursuant to 19 U.S.C 1504(d), at the amount of duty asserted at the time of entry by the importer of record.

Issue (3)
Whether the entries are now subject to 0.00% antidumping duties?

Examination of the CF 7501 Entry Summary shows that GBS included the antidumping duty investigation code, Case A-570-846-026, and asserted antidumping duties at the rate of 43.32%.

Therefore, pursuant to 19 U.S.C. 1504(d), above, the entries are not subject to 0.00% antidumping duties, and GBS is liable for antidumping duties at the rate of 43.32%. See Rheem Metalurgica S/A, et al. v. United States, 160 F.3d 1357 (Fed. Cir. 1998).

HOLDING:

Accordingly, the protest should be DENIED for the reasons noted above. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs 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 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,

Myles B. Harmon
Acting Director,

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