Application for Further Review of Protest No 3901-2013-100073 Concerning Entries Covered by the Antidumping Duty Order on Pasta from Italy

HQ H247458 December 20, 2013 PRO 2-05 OT:RR:CTF:ER H247458 RGR Port Director U.S. Customs and Border Protection 5600 Pearl Street Rosemont, IL 60018 Attn: Ms. Mary Lou Belfiore Re: Application for Further Review of Protest No: 3901-2013-100073 Concerning Entries Covered by the Antidumping Duty Order on Pasta from Italy Dear Port Director, The purpose of this correspondence is to provide further review of Protest Number 3901-2013-100073, which we received on November 1, 2013. The protesting party is International Fidelity Insurance Co. (“Fidelity”), surety for importer of record, Eureka S.R.L. (“Eureka”). FACTS: The surety protests the liquidation of four entries of pasta from Italy produced by PAM S.P.A. and exported by PAM S.P.L (collectively referred to herein as “PAM”) that were subject to antidumping duty order under number A-475-818 and entered between June 9, 2008 and June 17, 2008. See Certain Pasta from Italy: Notice of Amended Final Results of the Twelfth Antidumping Duty Administrative Review, 75 Fed. Reg. 11,116 (Mar. 10, 2010). On April 27, 2010, the Court of International Trade (“CIT”) issued a preliminary injunction enjoining the liquidation of these entries. See Department of Commerce (“Commerce”) Message Number 0120302 (Apr. 30, 2010). On June 8, 2011, the CIT affirmed Commerce’s final results of its administrative review of the antidumping order. Pastificio Lucio Garofalo v. United States, No., 783 F.Supp.2d 1230 (CIT June 8, 2011). On November 8, 2011, Commerce issued liquidation instructions covering all shipments of pasta from Italy produced and/or exported by PAM. See Commerce Message Number 1312302 (Nov. 8, 2011). Customs and Border Protection (“CBP”) liquidated the entries on May 4, 2012, and assessed antidumping duties of 8.61% as instructed by Message Number 1312302. Because Eureka failed to pay the bill for the additional antidumping duties, CBP sent a formal demand to Fidelity on August 2, 2012. On January 23, 2013, Fidelity filed Protest Number 3901-2013-100073 with the port. Fidelity claims that CBP received notice of the removal of suspension when there was a “final court decision” on August 8, 2011, sixty days after the expiration of time to appeal the CIT’s June 8, 2011 decision affirming Commerce’s final results of its administrative review. Fidelity argues that the entries 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 CBP failed to liquidate the entries within six months of notice that suspension of liquidation was lifted. ISSUE: Whether CBP liquidated the entries 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 180 days from the mailing of notice of demand for payments against its bond. See 19 U.S.C. § 1514(c)(3). Notice of demand for payment against Fidelity’s bond was made on August 2, 2012, and this protest was filed on January 23, 2013, within 180 days. Further, the protestant requests further review per 19 C.F.R. § 174.25(b). CBP’s regulations provide for further review of a protest when, inter alia, 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). At the time you requested further review, we had not ruled on this matter. 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. Id. See also, 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 courts, however, have recognized that other methods of notice are sufficient. The court in Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1379 (Fed. Cir. 2002) addressed when notice of the removal of suspension of a court-ordered suspension occurred. In Fujitsu, the plaintiff argued that CBP received notice that court-ordered suspension of liquidation was removed when the court later issued a final decision in the case. The court, however, 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. In this case, there was no publication of the court’s ruling in the Federal Register because the court affirmed Commerce’s final results. Commerce notified CBP on April 30, 2010, in Administrative Message Number 0120302, that the CIT had enjoined liquidation of the entries. When the CIT affirmed Commerce’s final results of its administrative review of the antidumping order on June 8, 2011, the injunction was lifted. However, CBP did not receive notice of the lifting of suspension on June 8, 2011, as a court order does not constitute 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 November 8, 2011, when Commerce issued liquidation instructions in Message Number 1312302 . Following the CIT’s reasoning in Fujitsu, Message Number 1312302 from Commerce to CBP, issued November 8, 2011, is the earliest “unambiguous” communication which could constitute notice to CBP that the court-ordered injunction issued on April 27, 2010 was lifted with regard to the protested entries. In HQ H150415 (July 12, 2013), involving analogous facts and issues, we held that where no Federal Register notice was published following a court ruling affirming Commerce’s final results, CBP first received notice of the lifting of the injunction when Commerce issued liquidation instructions. Fidelity relies on International Trading to argue that Commerce’s November 8, 2011 liquidation instructions did not constitute notice of removal of suspension. See International Trading, 281 F.3d at 1275-1276. Fidelity’s reliance on International Trading to conclude that the liquidation instructions did not constitute notice is misplaced because the facts in International Trading involved the removal of suspension upon publication of the final results of an administrative review. On the other hand, removal of suspension of liquidation in this case occurred as a result of court action, not a Federal Register publication. In fact, the CIT in International Trading stated that where removal of suspension of liquidation occurs as a result of court action rather than through a Federal Register publication, “the required notice must be provided by a separate mechanism. For that reason, it makes sense for section 1504(d) to refer separately to the acts of removal of suspension of liquidation and notification of the removal.” International Trading, 281 F.3d at 1276. Moreover, International Trading and its progeny relied on notice being “unambiguous and public,” and here, the “finalization” of the CIT’s decision sixty days after the time to appeal the decision does not constitute unambiguous notice. Fidelity also argues that the court’s reasoning in Fujitsu supports its position that notice was when the preliminary injunction dissolved, on August 8, 2011. However, this ignores the court’s clarification in International Trading that the removal of suspension after litigation is a separate act from notice to CBP of that removal. Id. Thus, the ending of the injunction was not an “unambiguous and public starting point.” See Fujitsu, 283 F.3d at 1379. Since Message Number 1312302 reflects the earliest unambiguous and public notice to CBP, in accordance with Fujitsu, this constitutes notice for purpose of 19 U.S.C. § 1504(d). Id. Finally, because CBP received notice of lifting of the suspension of liquidation on November 8, 2011, and liquidated the protested entries on May 4, 2012, they were timely liquidated. Therefore, the protested entries are not deemed liquidated as entered. Under the facts described, and in response to the request for further review, you are directed to DENY the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (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 60 days from the date of this letter. Sixty days from the date of the decision, the Office International Trade, 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 and Trade Facilitation Division