Commerce's Late Amendment to AD Rate Can't Be Challenged by Protest, CBP Says
An importer can't challenge the timeliness of a Commerce Department antidumping duty notice by way of a customs protest, CBP said in a recent ruling (here). Though L.F.I. Incorporated claimed its entry of preserved mushrooms should have been deemed liquidated because Commerce issued the amended final results of an administrative review too late, CBP held in HQ H268908 that it correctly liquidated the entry from the date of the amended final results because it was only following Commerce's directions.
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Commerce had issued its final results of the review covering the entry in September 2011. It subsequently issued an amended final results that affected L.F.I.'s assessment rate in November, before liquidating the entry in April 2012. CBP is required to liquidate entries covered by administrative reviews within six months of the date it receives notice that the review has been finalized. Otherwise, the entry is deemed liquidated.
L.F.I. argued CBP should have liquidated the entry by March 2012, six months after the original final results. Because it did not, the entry should have deemed liquidated at the rate declared by L.F.I. on its entry documentation. The amended final results Commerce issued in November were "null and void," because Commerce did not issue the subsequent notice within 30 days of its original final results, L.F.I. said. By waiting until April, CBP missed the six-month deadline that ran from September, it said.
On further review, CBP headquarters instructed the Port of Newark to deny L.F.I.'s protest. CBP has a ministerial role in antidumping duty cases, it said. "Commerce, not CBP, is required to determine the rate of antidumping duty to be assessed and publish final results and liquidation instructions," it said. Here, CBP was only implementing liquidation instructions issued by Commerce to liquidate L.F.I.'s entries based on the amended final results. "Only decisions made by CBP are protestable," CBP said in the ruling. "Accordingly, CBP acted in its ministerial capacity when applying Commerce’s instructions and whether or not the amended results were timely issued by Commerce, is not protestable."