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HQ 229859





December 31, 2003

HQ 229859 MK

LIQ-4-01 RR:CR:DR
CATEGORY: PROTEST

Port Director, Customs Border Protection
9901 Pacific Highway
Blaine, WA 98230
Attn: Edward Ellsworth

RE: Protest 3004-02-100148; Westview Sales Ltd.; Scope Determination; Liquidation of Entries

Dear Port Director:

The above-referenced protest has been forwarded to this office for further review. We have considered the points raised by the protestant, Border Brokerage Co., Inc., and the port. Our decision follows.

FACTS

Border Brokerage Co. Inc. protests the liquidation of 12 entries with double antidumping duties assessed. According to the protestant, “the subject merchandise imported under cover of the 12 protested entries is Chinese origin iron castings, consisting of covers, grates frames and hoods.” The representative Customs Form (“CF”) 7501 (entry summary), for entry number 211-xxxx914-8, entered on September 18, 2000, states the goods were “manhole covers, rings, frames,” entered duty-free under subheading 7325.10.00, Harmonized Tariff Schedule of the United States (“HTSUS”), from the People’s Republic of China (“PRC”). According to Customs’ automated data collection system (“ACS”), the twelve entries were entered from September 18, 2000, to January 15, 2001,

According to the Protestant, Border Brokerage served as the importer of record for the actual importer, Westview Sates, Ltd. (“Westview”), and the file contains shipping documents demonstrating that it was Westview that purchased the products from the Chinese exporter/producer. However, this is not essential to the analysis of this case. and liquidated on September 20, 2002.

The antidumping duty order for “iron construction castings from the People’s Republic of China” (51 FR 17222, May 9, 1986), case number A-570-502 states:

“The products covered by this order are certain iron construction castings, limited to manhole covers, rings and frames, catch basins, grates and frames, cleanout covers and frames used for drainage or access purposes for public utility, water and sanitary systems, classifiable as heavy castings under item number 657.0950 of the Tariff Schedules of the United States, Annotated (TSUSA), and to valve, service and meter boxes which are placed below ground to encase water, gas, or other valves, or water or gas meters, classifiable as light castings under item number 657.0990 of the TSUSA. These articles must be of cast iron, not alloyed, and not malleable.”

The CF 7501 of entry 211-xxxx914-8, which was provided to illustrate the issues, describes the merchandise as manhole covers, rings [and] frames classifiable within subheading 7325.10.00, HTSUS (2000 ed.). The entry invoice describes the merchandise as a 10-inch frame and a MFN cover, having part numbers 2010F10 and 2010C, respectively. In a submission to the Port Director at Blaine, Washington, dated August 10, 2001, the protestant included specification drawings for the 2010 frame and cover. Those drawings state that the frame and cover are made of ASTM A48 Class 25 Grey Iron. The Office of Laboratories and Scientific Services advised this office that ASTM A48 grey iron is nonmalleable. Subheading 7325.10.00, HTSUS (2000 ed.), covers articles of nonmalleable cast iron.

On August 27, 2002, Administrative Message number 2239212 was issued by the Department of Commerce, Director of Special Enforcement to the Directors of Field Operations and Port Directors. The message was regarding antidumping case number A-570-502 for the period from May 1, 2000 to April 30, 2001. It stated in relevant part:

“[I]n accordance with section 351.212(c) of the Commerce Department regulations, you are to assess antidumping duties on all merchandise entered, or withdrawn from warehouse, for consumption at the cash deposit or bonding rate in effect on the date of entry summary.”

“Upon assessment of antidumping duties, Customs should require that the importer provide a reimbursement statement as described in Section 351.402(f)(2) of the Commerce Department Regulations. The importer should provide the reimbursement statement prior to liquidation of the entry. If the importer has been reimbursed antidumping duties, Customs should double the antidumping duties in accordance with the above-referenced regulation. Additionally, if the importer fails to respond to your formal request (via CF 28 or 29) for the reimbursement statement prior to liquidation, Customs should presume reimbursement and double the antidumping duties due.”

The message number 2239212 was posted on the Customs Electronic Bulletin Board, to which the general public has access.

According to the CBP Import Specialist, on September 16, 2002, a Customs Form 29 was sent to Border Brokerage, which is located across the street from the port, for each of the twelve entries. The sample CF 29 states that:

We believe that some, or all of the items imported via this entry to be subject to anti-dumping case A-570-502-000. In accordance with the liquidation instructions issued via message 2239212, please note Administrative Message 2002/08/27/015 which was sent to all ABI brokers, we have liquidated this entry with a Rate Advance. Inasmuch as no Reimbursement Certificate was filed for this entry prior to liquidation we have doubled the case deposit rate in effect on the date of the entry summary. This has resulted is an increase of $26,534.77 plus interest.

According to both ACS and the representative CF 7501, on September 20, 2002, the port liquidated the 12 protested entries. The representative CF 7501 reflects this change: handwritten on the CF 7501 is “A570-502-000” and “185.48%,” initialed, and dated July 31, 2001.

On December 6, 2002, Joel R. Junker, attorney for the Protestant, filed a request for scope ruling with the U.S. Department of Commerce. The Protestant requested a scope determination that the 2010 10” Frame, 2010 6” Frame, and 2010 Cover all fall outside the scope of the duty order (antidumping number A-570-502) on Iron Construction Castings from the People’s Republic of China. On October 17, 2003, the Department of Commerce determined that the frame and cover were within the scope of the order.

On December 17, 2002, Border Brokerage filed Protest number 300-40-2100148 with the Port of Blaine, Washington.

ISSUES:

Whether the contention that the entered goods are outside the scope of the antidumping order is a protestable issue?

Whether the reimbursement provision of 19 CFR 351.402 was erroneously applied to the subject entries?

ANALYSIS:

Initially, we note that the protest, under 19 U.S.C. §1514 was timely filed, i.e. within 90 days after the date of liquidation. All the entries protested were liquidated on September 20, 2002. This protest was filed December 17, 2002.

Generally the liquidation of an entry assessing the dumping duties in accordance with the instructions of the Department of Commerce, is not protestable. However, if the CBP liquidation incorrectly applies a Commerce instruction, that liquidation is protestable. The different results are illustrated by the cases of Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994) and Xerox Corporation v. United States, 289 F.3d 792 (Fed. Cir. 2002).

In Mitsubishi, the court addressed whether Commerce’s automatic assessment of antidumping duties without a review, if none is requested, is protestable under 19 U.S.C. § 1514. In Mitsubishi, the Department of Commerce published a notice advising that, if no party sought an administrative review by a certain date, Commerce would instruct Customs to automatically assess duties under 19 CFR 353.53a(d)(1). No review was requested, and Commerce automatically assessed antidumping duties. Mitsubishi then protested Commerce’s decision to preliminarily assess duties, under 19 U.S.C. §1514. The court found Commerce’s automatic assessment of Customs duties was not a protestable issue because, “Section 1514(a) applies exclusively to Customs ‘decisions’ within the enumerated categories. Section 1514(a) expressly refers to ‘decisions of the Customs service.’ Section 1514(a) does not embrace decisions by other agencies.” Id. at 976.

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.”

Id. at 977.

The court later considered, in Xerox, which issues arise in the administration of antidumping duty orders require scope inquiries to the Department of Commerce and which are protestable to Customs. Xerox imported rubber and plastic feed belts from Japan to be used for carrying paper across the light-platen or scanner-platen of photocopiers. The entry summaries included a reference to an order that covered “industrial belts used for power transmission in part or wholly of rubber or plastic, and containing textile fiber (including glass fiber) or steel wire, cord or strand.” Pursuant to the Department of Commerce’s antidumping duty order, Customs levied a duty which Xerox challenged under 19 U.S.C. §1514(a)(2) with a formal protest. When Customs denied this protest, Xerox appealed to the Court of International Trade under 28 U.S.C. § 1581. Xerox argued the belts were clearly outside the scope of the order because they were not used for power transmission and they were not reinforced, therefore Customs made a ministerial error in administering the order.

In this case, Xerox did not request a 19 U.S.C. §1516a(a)(2)(B)(vi) scope determination by Commerce because it believed such an inquiry was unnecessary. The goods were determined by the court to be clearly outside the scope of the order. The court found that:

Correcting such a ministerial, factual error of Customs is not the province of Commerce. Instead an importer may file a protest with Customs. In cases such as this, where the scope of the antidumping duty order is unambiguous and undisputed, and the goods clearly do not fall within the scope of the order, misapplication of the order by Customs is properly the subject of a protest under 19 U.S.C. § 1514(a)(2).

We must determine therefore, whether the order at issue is “unambiguous and undisputed” and whether the goods “clearly do not fall within the scope of the order.”

The language of the May 9, 1986, dumping order states:

“The products covered by this order are certain iron construction castings, limited to manhole covers, rings and frames, catch basins, grates and frames, cleanout covers and frames used for drainage or access purposes for public utility, water and sanitary systems. These articles must be of cast iron, not alloyed, and not malleable.”

Here the order covers two categories of castings: heavy castings used for public utility, water and sanitation purposes and light castings to encase water, gas or other valves or water or gas meters. The order also specifies that the covered articles are of nonalloyed, nonmalleable cast iron. The representative entry describes the goods as cast iron manhole covers and frames. While the tariff subheading is not dispositive of the scope of an antidumping duty order under the plain language of the notice of November 12, 1999 (64 F.R. 61590), by virtue of 19 U.S.C. 1484, Customs is entitled to rely on an importer’s entry declarations. See H. Rpt 103-361, Part I, on H.R. 3450 pg. 136 (Nov. 15, 1993).

While the protestant asserts that the entry classification was in error, it provided no evidence to support that assertion.

The text of the product description in the order shows that in order to determine its scope the meaning of the terms “heavy castings” and “public utility” would have to be determined. In addition, as noted above, there is a dispute as to whether the cover and frame were nonmalleable. Finally, Commerce, by a public scope ruling issued to Westview Sales Ltd., the Canadian supplier on the representative entry, on October 17, 2003, determined that the imported manhole covers and frames were covered by the order.

Consequently, the holding in Mitsubishi Electronics, rather than Xerox, would apply here.

The Protestant also argues that Customs should not have presumed reimbursement of the deposited antidumping duties under the provision of 19 CFR 351.402 because:

Customs knew that BBC and Westview submitted in its prior disclosure that certain merchandise imported under cover of the 12 entries were not within the scope of the antidumping duty order; (2) Customs knew (and recommended) that BBC and Westview would file a petition with the Department of Commerce requesting a scope ruling; (3) Customs Headquarters instructed the Port Directors in the Administrative Message to issues a “formal request (via a CF 28 or 29) for the reimbursement statement prior to liquidation;” (4) the Port of Blaine failed to issue a formal request to BBC via a CF 28 or CF 29 for the non-reimbursement statement; (5) no reimbursement occurred in this case; and, (6) during preliminary discussions about the prior disclosure, Customs never claimed that BBC or Westview owed double the antidumping duties alleged to be due.”

19 CFR 351.402, states in relevant part:

(f)Reimbursement of antidumping duties and countervailing duties (2) Certificate. The importer must file prior to liquidation a certificate in the following form with the appropriate District Director of Customs (3) Presumption. The Secretary may presume from an importer’s failure to file the certificate required in paragraph (f)(2) of this section that the exporter or producer paid or reimbursed the antidumping duties or countervailing duties.

The Reimbursement Certificate described requires the importer to certify that it has not been reimbursed for all or part of the antidumping duties assessed. Section 351.402(f)(2) also specifically requires the importer to file the Reimbursement Certificate prior to liquidation.

A Notice of Final Results, dated October 2, 1995, imposed an antidumping margin of 92.74% to remain in effect until the publication of the final results of the next administrative review. A Continuation of Antidumping Duty Orders instructed CBP to continue to collect these antidumping duties. And the Antidumping or Countervailing Duty Order, of May 1, 2001, notified all importers that, baring a request for review, by the end of May 2001, Customs would assess antidumping duties at the rate required at entry, in this case, 94.74%. All three of these are published and provide notice to an importer that the subject entries will be liquidated at a determined rate unless the importer takes action in the set time period, by May 2001. At the conclusion of this time period, CBP is not required to remind the importers to file the reimbursement certificate so as to not be presumed reimbursed at that predetermined rate.

On August 27, 2002, Administrative Message 2239212, which was posted on the Customs Electronic Bulletin Board, to which the general public has access, stated that Customs was “to assess antidumping duties on all merchandise entered, or withdrawn from warehouse, for consumption at the cash deposit or bonding rate in effect on the date of entry summary.” This message also reminded the importers to provide the 19 CFR 351.402(f)(2) Reimbursement Certificate, certifying that the importer was not being reimbursed for antidumping duties on these entries.

As a final reminder, the port sent CF 29’s to the importer. The CF 29’s are dated September 16, 2000 and stated:

In accordance with the liquidation instructions issued via message 2239212, please note Administrative Message 2002/08/27/015 which was sent to all ABI brokers, we have liquidated this entry with a Rate Advance. Inasmuch as no Reimbursement Certificate was filed for this entry prior to liquidation we have doubled the case deposit rate in effect on the date of the entry summary.

The entries were not liquidated until four days later on September 20, 2000. The Import Specialist states that Border Brokerage is located across the street from the port and four days was ample time to respond to the CF 29s.

The importer did not file the Reimbursement Certificates prior to liquidation regardless of non-required CBP reminders. Commerce Regulation 351.402(f)(3), provides that the Secretary of Commerce may presume from the importer’s failure to file the Reimbursement Certificate, that payment or reimbursement of the antidumping duties occurred, and thus the Secretary is required to deduct the amount of payment or reimbursement from the United States price (this amounts to a doubling of the antidumping duty) (19 C.F.R. §351.402(f)(3)). The burden is therefore on the importer to submit the reimbursement certificates prior to liquidation. Customs had no responsibility to instruct or remind the importer to submit any further documentation, and in any event, the Port Director states that notices were sent.

HOLDING:

The contention that the goods entered with the protested entries are outside the scope of the antidumping duty order is not protestable.

The port properly assessed double antidumping duties in accordance with 19 CFR §351.402.

The protest is therefore denied.

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.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon
Director, Commercial Rulings Division

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