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HQ 229817

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February 10, 2005

LIQ-4-01

RR:CR:DR 229817 IDL

CATEGORY: DEEMED LIQUIDATION DETERMINATION

U.S. Customs and Border Protection

Port Director

Los Angeles-Long Beach Seaport
301 E. Ocean Blvd.
Long Beach, CA 90802

RE: Protest No. 2704-02-102691; 19 U.S.C. 1514; Antidumping Duties

Dear Port Director:

This is in response to your correspondence concerning Atalanta Corp., Protest No. 2704-02-102691.

FACTS:

On April 21, 2000, Atalanta made Entry 595-xxxx830-5, Canned Mushrooms manufactured by Agro Dutch Foods Limited, of India (“Agro”).

Previously, on February 19, 1999, the Department of Commerce (“Commerce”) had published on Case A-533-813, Notice of Amendment of Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Preserved Mushrooms From India (“Order”). 64 FR 8311. The Order listed the antidumping duty margin for Agro merchandise at 6.28%.

On April 21, 2000, Atalanta made the subject entry. On March 7, 2002, Commerce published on Case A-533-813, Certain Preserved Mushrooms from India: Preliminary Results of Antidumping Duty Administrative Review (“Preliminary Results”). 67 FR 10371. The Preliminary Results listed the antidumping duty margin for Agro merchandise at 1.54%.

On July 12, 2002, Commerce published on Case A-533-813, Notice of Final Results of Antidumping Duty Administrative Review (“Final Results”). 67 FR 46172. The Final Results listed the antidumping duty liability for Agro merchandise at 27.80%.

On August 23, 2002, Commerce issued on Case A-533-813, Liquidation Instructions for Mushrooms from India, via Message No. 2235207. The instructions directed the U.S. Customs Service (hereinafter, “Customs”) to assess Atalanta antidumping duty liability of $0.146 per kilogram (drained-weight) on Agro merchandise entered during the period of February 1, 2000 through January 31, 2001. The instructions “constitute the immediate lifting of suspension of liquidation of entries for the merchandise and period listed” above.

On September 5, 2002, Customs issued to Atalanta a CF-29 Notice of Action. The CF-29 cited the $0.146/kg rate listed in Commerce’s liquidation instructions.

On September 27, 2002, the port liquidated the subject entry. On October 1, 2002, the Court of International Trade issued an injunction on Case A-533-813, ordering a suspension of liquidation on all unliquidated entries.

On December 20, 2002, Atalanta filed Protest No. 2704-02-102691. Protestant alleges that Customs should not have liquidated the subject entry, as directed by the C.I.T. injunction on liquidation of any unliquidated entries.

ISSUE:

Whether Customs prematurely liquidated the subject entry on September 27, 2002?

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). Customs liquidated the subject entry on September 27, 2002, and Atalanta filed Protest No. 2704-02-102691 on December 20, 2002.

In addition, we note that Protestant, on April 15, 2003, attempted to integrate twelve additional entries not originally listed with Protest No. 2704-02-102691. However, the additional entries are not protestable, since Protestant failed to submit the additional entries within 90 days of the notice of liquidation of the additional entries on September 27, 2002, thereby failing to meet the requirements of 19 U.S.C. 1514. Lykes-Pasco v. United States, 22 C.I.T. 614; 14 F. Supp. 2d 748 (1998), aff’d 185 F.3d 879 (Fed. Cir. 1998).

In any event, in order to protest a decision under section 1514, a 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). Generally, antidumping duty rates correctly applied by Customs are not protestable. Fujitsu Ten Corp. v. United States, 21 C.I.T. 104; 957 F. Supp 245 (January 29, 1997). Although an importer may protest Customs’ failure to follow a Commerce instruction under section 1514 (American Hi-Fi International, Inc. v. United States, 19 C.I.T. 1340 (1995)), 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 dutiesat the time of liquidation.” (emphasis added) HQ 225382; see also, Mitsubishi Electronics America, Inc. v. United States, 44 F. 3d 973 (Fed. Cir. 1994); Nichimen America, Inc. v. United States, 938 F. 2d 1286 (1991). A protestant may not challenge facts relating to determinations by Commerce in a 1514 protest action. See ABC International Traders v. United States, 19 C.I.T. 787 (May 23, 1995); HQ 224623.

Evidently, the argument presented by Atalanta relating to premature liquidation is not protestable against any Customs decision, since it addresses the antidumping determination itself, and not Customs’ implementation of Commerce’s instructions. Commerce issued liquidation instructions on August 23, 2000, and Customs merely followed Commerce’s instructions in liquidating the subject entry on September 27, 2002. Therefore, Customs did not prematurely liquidate the subject entry.

Nevertheless, we note that since Customs liquidated the subject entry on September 27, 2002, prior to the C.I.T.’s injunction of October 1, 2002, the subject entry could not have been subject to the provisions of that injunction.

HOLDING:

Accordingly, the protest should be DENIED.

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 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 Rulings Division


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