HQ 230315 - Protest/Application for Further Review No. 4601-03-102937; 19 U.S.C. § 1514; antidumping duties; Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994) - United States International Trade Commision Rulings

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HQ 230315

September 27, 2004

LIQ-4-01; 11 RR:CR:DR 230315 EM

Customs and Border Protection
Port Director
Port of Newark, New York
C/O Protest and Control Section
1100 Raymond Blvd.
Newark, NJ 07102

RE: Protest/Application for Further Review No. 4601-03-102937; 19 U.S.C. § 1514; antidumping duties; Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994)

Dear Port Director:

This is in reply to your memorandum dated January 20, 2004, requesting a further review of Protest No. 4601-03-102937. Coudert Brothers LLP filed the protest on behalf of the importer, H. Reynaud & Fils USA Co.

The protest concerns five entries of coumarin upon which antidumping duties were assessed by Customs and Border Protection (CBP). The protestant objects to CBP’s assessment of antidumping duties, claiming that the duties imposed by the Department of Commerce (Commerce) lack a legal basis. Our decision follows.

FACTS:

The protestant made five entries of coumarin from China between May 10, 2002 and November 28, 2002. At the time of entry, coumarin from China was subject to antidumping duties under antidumping case number A-570-830. See Notice of Antidumping Order: Coumarin from the People’s Republic of China, 60 Fed. Reg. 7751 (Dep’t Commerce Feb. 9, 1995). Commerce is responsible for the administration of the antidumping duty orders. In this case, no interested parties sought administrative review of the antidumping order for the administrative review period (February 1, 2002 through January 1, 2003) encompassing the dates of entry for the subject merchandise. Id.

In the absence of a request for administrative review, Commerce issued automatic assessment instructions on May 29, 2003 to liquidate all entries of coumarin from China for the period of February 1, 2002 to January 31, 2003 and to assess the appropriate antidumping duties. See Issues and Decision Memoranda for the Final Results of the Changed Circumstances Review and Revocation of the Antidumping Order on Coumarin from the People’s Republic of China (PRC) (Dep’t Commerce May 3, 2003). Telex Message 3149204 issued to the directors of field operations and port directors on May 29, 2003 specifically stated, in relevant part, that:

2. The Department of Commerce has not received a request for an administrative review of the antidumping duty order on coumarin from the People’s Republic of China (PRC) for the period listed below [02/01/2002-01/31/2003]. Therefore, in accordance with section 351.212(c) of the Commerce Department Regulations, you are to assess antidumping duties on merchandise entered, or withdrawn from the warehouse, for consumption at the cash deposit or bonding rate in effect on the date of entry.

You complied with the message, assessing the appropriate antidumping duty rates and liquidating the protest entries. Entry number 008-XXXX-5 was liquidated on July 6, 2003. The remaining four entries (009-XXXX-1; 009-XXXX-0, 009-XXXX-3; 009-XXXX-8) were liquidated on July 11, 2003.

Subsequently, an interested party submitted a request for an administrative review of the antidumping duty order on coumarin from China. Commerce filed notice of its initiation of a changed circumstances review on August 6, 2003. See Notice of Initiation of Changed Circumstances Review and Consideration of Revocation of the Antidumping Duty Order: Coumarin from the People’s Republic of China, 68 Fed. Reg. 46579 (Dep’t Commerce Aug. 6, 2003). On August 26, 2003, the protestant timely submitted a document to the Commerce. It was entitled “Comments of H. Reynaud & Fils USA Co. with Respect to the Department’s Consideration of the Changed Circumstances Review and Consideration of the Antidumping Order Against Coumarin from China.” Commerce took this opinion into account in its administrative review process.

On October 8, 2003, the protestant filed a CF-19 (Protest), requesting reliquidation of the five protest entries with refund of antidumping duties and interest because "there was no legal basis for the antidumping duty order on [c]oumarin from China at the time of entry or liquidation.” In support of its argument, the protestant submitted a letter dated December 5, 2003. The letter indicated that counsel was providing further arguments in support of the protest by submitting a copy of its August 26, 2003 submission to Commerce. Aside from the CF-19 and this document, the only other information that protestant provided consists of copies of entry and shipping documents for the subject entries.

Commerce’s administrative review has since concluded. On January 26, 2004, Commerce issued its preliminary decision to revoke the antidumping order effective February 1, 2003. See Coumarin from the People’s Republic of China: Preliminary Results of Changed Circumstances Review and Intent to Revoke the Antidumping Order, 69 Fed. Reg. 3543 (Dep’t Commerce Jan. 26, 2004). On May 3, 2004, Commerce issued the final results for the administrative review of the antidumping case for coumarin from China. See Notice of Final Results of Changed Circumstances Review and Revocation of the Antidumping Order: Coumarin from the People’s Republic of China, 69 Fed. Reg. 24122 (Dep’t Commerce May 3, 2004) [hereinafter Final Results]. In its final results, Commerce unambiguously determined that the revocation of the antidumping order for coumarin from China would be effective for entries made on or after February 1, 2003. Id.

ISSUE:

Whether the Department of Commerce’s decision as to the effective date of a revocation order for an antidumping case is protestable under 19 U.S.C. § 1514(a)?

LAW AND ANALYSIS:

Initially, we note that the protest is not timely for all of the entries covered. Under 19 U.S.C. § 1514(a) “decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to . . . the liquidation or reliquidation of an entry . . . shall be final and conclusive . . . unless a protest is filed within 90 days of the notice of liquidation. According to the protestant, and supported by the liquidation dates in the Automated Commercial System (ACS), four of the entries were liquidated on July 11, 2003 and the remaining entry (008-XXXX-5) was liquidated earlier on July 7, 2003. Subsequently, the CF-19 was filed on October 8, 2003 in protest of Customs’ decision to liquidate the entries.

Given the 90-day time frame for filing a protest, the subject protest is timely for the four entries liquidated on July 11, 2003, but it is untimely for the entry liquidated on July 7, 2003. In order to timely protest against the liquidation of the latter entry, the protestant must have filed no later than 90 days after July 7, 2003, which would have been October 6, 2003. Having filed on October 8, 2003, the protestant failed to protest timely on the legality of the liquidation of entry number 008-XXXX-5 and is thus barred further inquiry into that particular entry’s liquidation.

As indicated above, § 1514(a) provides that the proper filing of a protest is an exception to the finality of certain, enumerated “decisions” of CBP. At issue is the whether CBP’s liquidation of entries in accordance with the effective date of a revocation order for an antidumping case constitutes a “decision” by CBP within the meaning of § 1514(a). For the reasons set forth below, we conclude that CBP did not make any “decision” in this case and, therefore, the issue is not protestable.

CBP has no authority to modify a decision by Commerce as pertains to the time period for which an antidumping duty order is revoked. As we indicated in HQ 225382 dated July 3, 1995, the role of the CBP in antidumping cases 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. In so doing, CBP does not make “decisions” that are protestable within the meaning of 19 U.S.C. § 1514(a). Id. In Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 976-77 (Fed. Cir. 1994), the court stated:

Commerce conducts the antidumping duty investigation, calculates the antidumping margin, and issues the antidumping duty order. Commerce then directs Customs to collect the estimated duties. See 19 U.S.C.

§ 1673e(a)(1)(1990). * * * Customs has merely a ministerial role in liquidating antidumping duties under 19 U.S.C.

§ 1514(a)(5) * * * Customs does not make any section 1514 antidumping “decisions.” Customs actions regarding dumping do not fall within § 1514(a).

Accordingly, the substantive merits, if any, of the protestant’s arguments against the legality of the effective date of revocation for the antidumping order are immaterial to the decision in this protest.

In this case, Commerce has already completed the administrative review process for the antidumping order on coumarin from China. See Final Results. It is also noteworthy that the protestant even participated in this process by submitting comments on the changed circumstances review (August 26, 2003), comments on the preliminary results (February 25, 2004), and rebuttal comments (March 1, 2004) respectively. Id. Commerce acknowledged its receipt and consideration of these comments in the Federal Register notices of the preliminary and final results for the administrative review of antidumping order on coumarin from China.

Under 19 U.S.C. § 1675(d), Commerce has the statutory authority to modify the effective date of revocation of an antidumping order. In Royal Bus. Machs., Inc. v. United States, the Court of International Trade (CIT) stated that CBP “may not independently modify, directly or indirectly the determinations [of Commerce], their underlying facts, or their enforcement.” 507 F. Supp. 1007, 1014 n. 18 (Ct. Int’l Trade 1980), aff’d by 669 F.2d 692 (C.C.P.A. 1982). In that case the court was discussing scope determinations regarding the types of goods covered by an antidumping order.

The same principle, however, applies to Commerce’s decision to revoke an antidumping order subsequent to administrative review under 19 CFR § 351.213. Like Commerce’s scope determination for an antidumping order, the revocation of an antidumping order is also an instruction to CBP from Commerce. See 19 CFR 351.222(g)(i). This rationale is consistent with the CIT’s subsequent decision in Mitsubishi, holding broadly that the mere assessment of antidumping duties according to instructions from Commerce cannot be challenged by protest under § 1514(a). 44 F.3d 976-77.

Accordingly, please note that scope determinations are protestable only if it is shown that Customs misinterpreted the scope of the order by assessing antidumping duties on goods that are clearly outside the scope of the order. Xerox Corp. v. United States, 289 F.3d 792, 795 (Fed. Cir. 2002); HQ 228838 dated September 27, 2002. Along those same lines, the effective date of revocation of an antidumping order would be protestable only if CBP misinterpreted the effective date of revocation thereby assessing antidumping duties on entries made on or after that date.

In this case, however, the protestant has not alleged that the coumarin entered between May 10, 2002 and September 28, 2002 was outside the liquidation orders in the telex message. The protest entries clearly fall within the time period provided for in that message. Commerce explicitly instructed CBP to liquidate all coumarin that was entered between February 1, 2002 and January 1, 2003, which includes the protest entries. The protestant challenges only the time period for revocation, as determined by Commerce. Accordingly, the protestant has not alleged any error on the part of CBP that could form the basis of a valid protest.

DECISION:

The protest should be DENIED in full. CBP’s liquidation of the protest entries and its assessment of antidumping duties in accordance with instructions issued by Commerce are not protestable within the meaning of 19 CFR § 1514.

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 Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of 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 Rulings Division

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