Application for Further Review of Protest No 0401-11-100138; Concerning Stainless Steel Wire Rods from India

HQ H187675 November 8, 2013 OT:RR:CTF:ER H187675 ASL Port Director U.S. Customs and Border Protection 10 Causeway Street, Suite 603 Boston, MA 02222 Attn: Ms. Bernadette Quirk, Supervisory Import Specialist Re: Application for Further Review of Protest No: 0401-11-100138; Concerning Stainless Steel Wire Rods from India Dear Port Director, The purpose of this correspondence is to provide further review of Protest Number 0401-11-100138, which was filed August 1, 2011 by Kurt Orban Partners (“Kurt Orban”). FACTS: Kurt Orban protests the liquidation of an entry of stainless steel wire rods from India that were subject to antidumping duty order number A-533-808 and entered on November 13, 2002. See Antidumping Duty Order: Certain Stainless Steel Wire Rods from India, 58 Fed. Reg. 63335 (December 1, 1993). The entered steel wire rods produced by Isibars Ltd. (“Isibars”) are at issue here. See Stainless Steel Wire Rods From India; Final Results and Partial Rescission of Antidumping Duty Administrative Review, 69 Fed. Reg. 29923 (May 26, 2004). On September 10, 2004, the Court of International Trade (“CIT”) issued a preliminary injunction enjoining the liquidation of these entries. See Department of Commerce Administrative Message No. 4273206 (September 29, 2004). On December 04, 2007, the case was dismissed by a stipulated agreement between the parties. On April 19, 2011, the Department of Commerce (“Commerce”) issued liquidation instructions covering the stainless steel wire rods manufactured by Isibars. See DOC Administrative Message No. 1109306 (April 19, 2011). CBP liquidated the entries on May 20, 2011, and assessed antidumping duties of 48.80% as instructed by Message No. 1109306. On August 1, 2011, Kurt Orban filed Protest number 0401-11-100138 with the port. Kurt Orban argued that the entry liquidated by operation of law at the rate of duty, value, quantity, and amount of duty asserted by the importer at the time of entry because prior to the injunction, liquidated instructions existed and when the injunction dissolved the original liquidation instructions were either automatically reinstated, tolled during the injunction, or reset. Therefore, in either circumstance, the entry deemed liquidated sometime in 2008 because CBP failed to liquidate the entries within six months of notice that suspension of liquidation was lifted. ISSUE: Whether CBP liquidated the entry within the time limits prescribed in 19 U.S.C. § 1504(d). LAW AND ANALYSIS: We note initially that the instant protest was timely filed, within ninety days from the date of liquidation. Section 2103 of the Miscellaneous Trade and Technical Corrections Act of 2004 amended 19 U.S.C. § 1514 to permit 180 days in which to file a protest, but that amendment is not applicable to this protest. See 19 U.S.C. § 1401 note (2006); Pub. L. No. 108-429, § 2103, 118 Stat. 2434, 2598 (2004). Section 2108 of subtitle B amended Section 1514 effective for goods entered or withdrawn from warehouse for consumption after December 18, 2004. Here, the merchandise was entered on November 13, 2002; therefore, the 90-day protest filing deadline is applicable. See 19 U.S.C. § 1514(c)(3) (2004) and 19 U.S.C. § 1401 note (2006); Pub. L. No. 108-429, § 2108, 118 Stat. 2434, 2598 (2004). The entry was liquidated on May 20, 2011, and this protest was timely filed on August 1, 2011, within 90 days. Furthermore, Kurt Orban raises issues that are protestable. 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 … unless a protest … is filed in accordance with this section.” Generally, antidumping duty rates correctly applied by CBP are not protestable, because “Customs has a merely ministerial role in liquidating antidumping duties.” Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). However, inasmuch as Kurt Orban protests the liquidation, i.e., disputes the application by CBP of Commerce's liquidation instructions, this matter is protestable. See Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002) (holding that correcting a ministerial, factual error of CBP is protestable). The protestant requests further review. CBP’s regulations provide for further review of a protest when the decision against which the protest was filed: (b) Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts; 19 C.F.R. § 174.24(b). The protestant seeks further review per 19 C.F.R. § 174.24(b), because the “protest involves questions of law or fact that have not been ruled upon by the Commissioner of Customs or his designee or by the Customs Court.” Protestant asserts that the entry liquidated by operation of law and CBP's liquidation was untimely. We agree that further review is warranted because CBP had not ruled upon this issue at the time the application for further review (“AFR”) was requested. See 19 C.F.R. § 174.26. Kurt Orban contends that CBP did not liquidate the entry within six months after receiving notice of the removal of suspension of liquidation and the protested entry was deemed liquidated as entered per 19 U.S.C. § 1504. Kurt Orban claims that when the CIT, pursuant to a stipulated agreement, dismissed Mukand Ltd. and Isibars Ltd. v. United States, CIT case # 04-00253, on December 4, 2007, the injunction to suspend liquidation automatically dissolved. As a result, Kurt Orban argues that when the injunction dissolved, the original liquidation instructions were either automatically reinstated, tolled during the period of the injunction, or reset, and regardless of which occurred, six months passed and the entry deemed liquidated before CBP liquidated the entry in May 2011. However, contrary to Kurt Orban’s assertion, CBP did not receive notice of the lifting of the suspension of liquidation until April 19, 2011. Therefore, CBP timely liquidated this entry on May 20, 2011. Section 1504(d) of Title 19 requires that CBP liquidate entries within six months after receiving "notice" that a suspension of liquidation of such entries has been removed. 19 U.S.C. § 1504(d). If CBP fails to timely liquidate the entries after receiving notice, the entries are "deemed" liquidated at the rate asserted at the time of entry. See Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1376 (Fed. Cir. 2002). "In order for a deemed liquidation to occur, (1) the suspension of liquidation that was in place must have been removed; (2) Customs must have received notice of the removal of the suspension; and (3) Customs must not liquidate the entry at issue within six months of receiving such notice." Id. CBP typically receives the relevant notice in the form of explicit liquidation instructions from Commerce. The Court of Appeals for the Federal Circuit (“CAFC”) in International Trading affirmed the CIT's ruling that suspension of liquidation because of an administrative review is removed upon publication of the final results of the administrative review. See International Trading, 281 F.3d 1268, 1271 (Fed. Cir. 2002). The CAFC found that when liquidation is suspended pending an administrative review, publication of the final results in the Federal Register constitutes public notice to CBP within the meaning of 19 U.S.C. § 1504(d) that the suspension is lifted and CBP must liquidate relevant entries within six months of the notice. Id. at 1275. The CAFC explained that the “date of publication provides an unambiguous and public starting point for the six-month liquidation period…” Id. Furthermore, the court noted that when the removal of suspension occurs as the result of a court action, that notice must be provided by a separate mechanism. Id. at 1276. The court in Fujitsu further addressed when notice of the removal of suspension of a court-ordered suspension occurred. In Fujitsu, the plaintiff argued that CBP received notice that a court ordered suspension of liquidation was removed when the court later issued a final decision in the case. Fujitsu, 283 F.3d at 1379. However, the court disagreed. The court stated that in cases where litigation comes to an end and the suspension of liquidation is removed, it is important that “an unambiguous and public starting point for the six-month liquidation period” is known. Id. at 1382. The court in Fujitsu found that Commerce’s subsequent publication of the court’s ruling in the Federal Register was such an “unambiguous and public starting point” and thus, constituted notice for purpose of 19 U.S.C. § 1504(d). Id. Unlike in Fujitsu, in this case the court did not issue a public decision, instead it dismissed the case without issuing a decision. Therefore, Commerce did not publish the court’s decision in the Federal Register, as there was none to publish, and thus there was no public notice. Because there was no Federal Register notice in this case as in Fujitsu, CBP first received notice of the dissolution of the injunction on April 19, 2011, when Commerce issued liquidation instructions in administrative message number 1109306. Following the CIT's reasoning in Fujitsu, message number 1109306 from Commerce to CBP, issued April 19, 2011, is the earliest “unambiguous and public” notice to CBP that the court-ordered injunction issued September 29, 2004, dissolved with regard to the protested entry and suspension of liquidation had lifted. The simple act of the litigation coming to an end does not constitute notice for purpose of 19 U.S.C. § 1504(d). See Fujitsu, 283 F.3d at 1382; and International Trading, 281 F.3d at 1276. Since there was no publication in the Federal Register of the court’s decision and Kurt Orban failed to provide evidence that CBP received notice prior to April 19, 2011, notice occurred on April 19, 2011. This was when Commerce issued message number 1109306 to CBP, which stated unambiguously and publicly that, “these instructions constitute notice of the lifting of suspension of liquidation…Accordingly, notice of the lifting of suspension occurred on the message date of these instructions” and for “all shipments of stainless steel wire rods from India produced and/or exported by Isibars LTD…assess an antidumping liability of 48.80 percent of the entered value.” This date reflects the earliest unambiguous and public notice to CBP. Finally, because CBP received notice of lifting of the suspension of liquidation on April 19, 2011, and liquidated the protested entry on May 20, 2011, it was timely liquidated. Therefore, the protested entry is not deemed liquidated as entered. Kurt Orban argues that in this case, because there was no decision issued by the underlying court as the parties stipulated to an agreement and because the injunction automatically dissolved with the dismissal, without a decision of the underlying case, the original instructions Commerce issued in 2004 were reinstated with either a “tolled” period or a new six month liquidation period starting. However, Kurt Orban ignores the requirement that notice of a suspension of liquidation was removed must be “unambiguous and public,” and here, the court’s dismissal based on a stipulated agreement does not constitute unambiguous and public notice to CBP. See Fujitsu, 283 F.3d at 1382. Moreover, there is no “tolling” provided for in the statute nor does Kurt Orban offer any legal support for that argument. See 19 U.S.C. § 1504(d). Thus, the six month liquidation period must start anew from an “unambiguous and public” notice that a suspension of liquidation was removed, regardless of whether a case was dismissed by a court’s decision or by stipulation. HOLDING Kurt Orban’s entry was properly liquidated and the antidumping duties were properly calculated. The Protest should be DENIED in full. No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CPB personnel, and to the public on the CPB 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 and Trade Facilitation Division