Application for Further Review of Protest 1303-13-100027 regarding the liquidation of entries of steel wire rope from Japan

HQ H233640 August 5, 2014 PRO 2-05 OT:RR:CTF:ER H233640 CSO Port Director U.S. Customs and Border Protection 40 South Gray Street Baltimore, Maryland 21202 Attn: Ms. Gail Douglas, Supervisory Customs Entry Officer Re: Application for Further Review of Protest 1303-13-100027 regarding the liquidation of entries of steel wire rope from Japan Dear Ms. Douglas: This letter is in response to the application for further review (AFR) for Protest 1303-13-100027 filed with U.S. Customs and Border Protection (CBP) by Mowery & Grimson, PLLC on behalf of M & G Industries, Inc. (M&G) that we received on September 25, 2012. We apologize for the delay in our response. FACTS: On February 17, 2012, M&G filed this protest for entries XXXX45838 and XXXX35563 for steel wire rope from Japan. Entry number XXXX35563 was entered on March 24, 1982 and entry number XXXX45838 was entered on April 20, 1982. The Department of Commerce (Commerce), announced the Final Results of its review on March 29, 1984. See Final Results of Antidumping Duty Administrative Review; Steep Wire Rope from Japan, 49 Fed. Reg. 12294 (March 29, 1984). On June 15, 2011, Commerce issued instructions to CBP to liquidate any remaining entries of steel wire rope from Japan from February 1, 1982 to September 30, 1984, that may not have been liquidated. See Message No. 1166307 (June 15, 2011). U.S. Customs and Border Protection (CBP) liquidated the entries on November 25, 2011, and doubled the antidumping duties because it did not receive the requisite certificates of non-reimbursement. Subsequently, M&G filed certificates of non-reimbursement with CBP on January 19, 2012, and included them with its protest. The certificates of non-reimbursement are signed by the importer of record and contain the entry numbers, time period and the merchandise subject to the antidumping order. M&G argues that the 24-year delay in liquidation of the two entries was unreasonable and violates the due process clause of the U.S. Constitution. Thus, M&G argues that it owes no duties on these entries as a result of the delay. M&G also asks CBP to reliquidate the entries because it has provided the certificates of non-reimbursement with its protest. ISSUES: Whether the liquidation of the two entries was proper. Whether the certificates of non-reimbursement that were presented with the protest are timely. ANALYSIS: We note initially that the instant protest was timely filed, within 90 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 March 24, 1982 and April 20, 1982; 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 November 25, 2011, and this protest was timely filed on February 17, 2012, within 90 days. CBP's regulations provide for further review of a protest when, inter alia, the decision against which the protest was filed: (b) [i]s 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. See 19 C.F.R. § 174.24(b). Upon review of the application for further review, we find that although some of the arguments raised have been addressed in Headquarters Ruling Letters or in the courts, there are facts and legal arguments that have not been the subject of a Headquarters ruling or court decision. See 19 C.F.R. § 174.24(b) and 19 C.F.R. § 174.26(b)(1)(iv). Accordingly, further review is warranted. Generally, assessed antidumping duties properly applied by CBP are not protestable, because "[c]ustoms has a merely ministerial role in liquidating antidumping duties." Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). Per 19 U.S.C. § 1673, Commerce calculates and determines the antidumping duty rate. Commerce then directs CBP to collect the estimated duties. See 19 U.S.C. § 1673e(a)(1). CBP is required to collect the antidumping duties imposed by the Department of Commerce per 19 U.S.C. § 1673(g). In Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed Cir. 1994) the Court stated: [c]ustoms merely follows Commerce's instructions in assessing and collecting duties . . . Customs has a merely ministerial role in liquidating antidumping duties under 19 U.S.C. § 1514(a)(5). CBP's ministerial role is to follow the liquidation instructions. Under the version of 19 U.S.C. § 1504(d) in effect at the time of these entries, suspension of liquidation only lifted when CBP received instructions from Commerce. See, e.g., HQ 225611 (Aug. 13, 1997). Here, CBP received the liquidation instructions on June 15, 2011. See Message No. 1166307 (June 15, 2011). CBP liquidated entries XXXX45838 and XXXX35563 on November 25, 2011, within a few months of receiving the liquidation instructions. This delay was not unreasonable. Therefore, we do not find that CBP violated the due process clause of the U.S. Constitution. To the extent that M&G is also arguing that Commerce’s delay in issuing the liquidation instruction is unreasonable, we find this is not protestable with CBP. Title 19 U.S.C. 1514(a) states that only decisions by CBP are protestable. Commerce’s delay in issuance of the instructions is not a decision by CBP and is not protestable. Finally, M&G presented certificates of non-reimbursement with its protest indicating that it was not reimbursed by the manufacturer, producer, seller or export for the duties assessed upon importation. CBP may accept a non-reimbursement certificate with a timely filed protest and therefore, M&G has sufficiently rebutted the presumption of reimbursement. See HQ H074225 (January 9, 2012). HOLDING: Under the facts described and in response to the application for further review, you are directed to GRANT in part with regard to the certificates of reimbursement and, DENY the protest with regard to CBP’s liquidation of the entries as stated above. In accordance with the Protest/Petition Processing Handbook (CIS HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than sixty days from the date of this letter. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade 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 and Trade Facilitation Division