H287183

90 K Street, N.E., Washington, D.C. 20229-1177 U.S. Customs and Border Protection HQ H287183 March 26, 2021 LIQ 4 OT:RR:CTF:ER H287183 ABH Port Director Port of JFK U.S. Customs & Border Protection John F. Kennedy International Airport, Building 77 2nd Floor, Executive Office Jamaica, NY 11430 Attn: Katherine Nucci, Supervisory Import Specialist RE: Application for Further Review of Protest 4701-17-100545; Antidumping Duties; Pasta from Italy Dear Port Director: The purpose of this correspondence is to address the application for further review (“AFR”) of Protest 4701-17-100545, dated February 27, 2017, filed by Delverde Industrie Alimentari S.p.A. (“Delverde”). Delverde protests the demand for payment by U.S. Customs and Border Protection (“CBP”) for increased antidumping duties (“ADD”) and countervailing duties (“CVD”), case numbers, respectively, A-475-818 and C-475-819, on two entries of Italian pasta imported by Delverde in 2007. FACTS: In September and October of 2007, Delverde imported two entries of pasta from Italy with a total entered value of $7,706. At the time of entry, Delverde did not deposit ADD and stated in its Protest that it was excluded from the antidumping order on Certain Pasta from Italy based on a decision from the U.S. Department of Commerce (“Commerce”). Notice of Amendment of Final Determination of Sales at Less Than Fair Value Pursuant to Court Decision and Revocation in Part: Certain Pasta from Italy, 66 Fed. Reg. 65,889 (Dec. 21, 2001); see also Commerce Message Number 2023201 (Jan. 23, 2002). Commerce Message Number 2023201 stated that, [t]he Department of Commerce has revoked the Antidumping duty order on certain pasta from Italy in part and published the revocation in The Federal Register on 12/21/2001 (66 FR 65889). The partial revocation applies to all subject merchandise manufactured by Delverde SRL (A-475-818-008), Delverde USA, Inc., and Tamma Industrie Alimentari Di Capitanata, Srl (A-475-818-021). The effective date of the revocation is 01/19/1996. (Emphasis added). At the time of entry, Delverde did deposit CVD at a rate of 2.83 percent on the entries pursuant to Commerce Message Number 2231210 (Aug. 19, 2002). See also Commerce’s administrative review under the CVD order: Certain Pasta from Italy: Final Results on the Fifth Countervailing Duty Administrative Review, 67 Fed. Reg. 52,452 (Aug. 12, 2002). Commerce Message Number 2231210 stated the following: Manufacturer Producer Exporter Id Number Rate Delverde, S.P.A. C-475-819-008 2.83 CBP liquidated the entries as entered on October 10, 2008. On July 19, 2012, Delverde submitted a prior disclosure to CBP to disclose ADDs and additional CVDs that “might be imposed” on its two 2007 entries. Delverde filed the prior disclosure in “an abundance of caution” because it simultaneously sought a Changed Circumstances Review (“CCR”) with Commerce. The CCR requested a ruling from Commerce that Delverde was the successor-in-interest of Delverde S.p.A., which Delverde stated was the entity excluded from the AD order on pasta from Italy and qualified for the 2.83 percent CVD rate pursuant to Commerce Message Numbers 2023201 (Jan. 23, 2002) and 2231210 (Aug. 19, 2002). Commerce’s CCR applied only to the AD order but in the CVD context, Delverde indicated that Commerce instructed Delverde to undergo a normal CVD administrative review (“AR”). On March 4, 2014, Commerce concluded the AR and determined that Delverde’s CVD rate was de minimis and reduced its rate to zero for entries made during the 2011 calendar year. Certain Pasta from Italy; Final Results of Countervailing Duty Administrative Review; 2011, 79 Fed. Reg. 12,154 (Mar. 4, 2014). On September 19, 2014, Commerce concluded the ADD CCR and determined that Delverde was not the successor-in-interest of Delverde S.p.A and, thus, Delverde was not excluded from the antidumping duty order on pasta from Italy. The CCR stated that “[t]his determination will apply to all entries of the subject merchandise entered or withdrawn from warehouse, for consumption on or after the date of the publication of the [CCR] final results.” Certain Past from Italy: Notice of Final Results of Antidumping Duty Changed Circumstances Review, 79 Fed. Reg. 56,339 (Sept. 19, 2014), see also Commerce Message Number 4272302 (Sept. 29, 2014). Commerce Message Number 4272302 stated that for shipments of pasta from Italy produced and or exported by Delverde Industrie Ailimetari S.p.A entered on or after September 19, 2014, the cash deposit rate for case number A-475-818-063 was 13.09 percent. On October 10, 2014, Delverde received a duty demand letter from CBP stating that with regard to the entries at issue in the prior disclosure, the “company rates should have been the ‘all others’ antidumping case, A-475-818-000 at 15.45%, and the countervailing case C-475-819-000 at 3.85%.” CBP calculated the loss of revenue due to CBP to be $1,269.19 for both entries. The letter stated that “[i]n accordance with 19 CFR 162.74(c), Code of Federal Regulations, you have thirty (30) days from the date of this letter to tender the above stated amount, which represents the actual loss of duty due CBP.” On November 14, 2014, Delverde submitted a letter to CBP explaining its belief that up to September 19, 2014, Delverde was excluded from the antidumping duty order and, accordingly, CBP’s duty demand letter was in conflict with Commerce’s instruction that the CCR results applied to entries on or after September 19, 2014. Delverde asserted that Commerce’s CCR was prospective in nature, which meant that the ADD Order did not apply to the prior entries covered by the prior disclosure. Delverde asserted that in the CVD context, because it received a de minimis ruling for its 2011 entries, “the 2.83% rate imposed on Delverde S.p.A. and paid [by Delverde] at the time of entry was not too low. Thus, Delverde believes this indicates that no increased CVD duty is appropriate for the disclosure period either.” In the present protest, Delverde seeks cancellation of the October 10, 2016, demand for payment, and the refund of the additional ADD and CVD tendered (including interest) because there was no underpayment of ADD or CVD. Additionally, Delverde seeks CBP to close the prior disclosure of July 19, 2012, with a refund of tendered duties and with accrued interest provided for by law. ISSUES: Whether Delverde’s request for refund of its ADDs and CVDs tendered pursuant to its prior disclosure is protestable? Whether CBP’s letter of October 10, 2014, constituted a charge or exaction within the meaning of 19 U.S.C. § 1514, so as to constitute a protestable issue. Whether CBP improperly calculated “actual loss of duties, taxes, and fees”? LAW AND ANALYSIS: As a preliminary matter, this protest was timely filed. Pursuant to 19 U.S.C. § 1514(c)(3)(B), a protest must be filed “within 180 days after but not before – (B) . . . the date of the decision as to which protest is made.” The demand for payment protested by Delverde was received by Delverde on October 10, 2016. Delverde filed its protest on February 27, 2017, well within the 180-day limitation. Whether Delverde’s request for refund of its ADDs and CVDs tendered pursuant to its prior disclosure is protestable? Delverde seeks CBP to close the prior disclosure of July 19, 2012, with a refund of tendered duties and with accrued interest provided for by law. Delverde argues that there was no underpayment of ADDs on its two entries at issue because Commerce’s 2014 CCR determination did not apply to entries before its publication date. With regard to CVDs, Delverde argues that Commerce’s 2014 CVD AR de minimis determination demonstrated that the 2.83 percent tendered by Delverde at the time of entry was not an underpayment. Accordingly, Delverde seeks a refund of the additional ADDs and CVDs tendered with its prior disclosure in 2012. Pursuant to 19 U.S.C. § 1514, protestable events include “all charges or exactions of whatever charact

As a preliminary matter, this protest was timely filed. Pursuant to 19 U.S.C. § 1514(c)(3)(B), a protest must be filed “within 180 days after but not before – (B) . . . the date of the decision as to which protest is made.” The demand for payment protested by Delverde was received by Delverde on October 10, 2016. Delverde filed its protest on February 27, 2017, well within the 180-day limitation.Whether Delverde’s request for refund of its ADDs and CVDs tendered pursuant to its prior disclosure is protestable?Delverde seeks CBP to close the prior disclosure of July 19, 2012, with a refund of tendered duties and with accrued interest provided for by law. Delverde argues that there was no underpayment of ADDs on its two entries at issue because Commerce’s 2014 CCR determination did not apply to entries before its publication date. With regard to CVDs, Delverde argues that Commerce’s 2014 CVD AR de minimis determination demonstrated that the 2.83 percent tendered by Delverde at the time of entry was not an underpayment. Accordingly, Delverde seeks a refund of the additional ADDs and CVDs tendered with its prior disclosure in 2012. Pursuant to 19 U.S.C. § 1514, protestable events include “all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury,” among other CBP decisions. The U.S. Court of International Trade (“CIT”), however, has “declined to hold the refusal to refund a voluntary tender of [duties] to be a charge or exaction within the meaning of the Tariff Act.” Thermacote Welco Co. v. United States, 246 F. Supp. 2d 1327, 1334 (Ct. Int’l Trade 2003). To constitute a charge or exaction, “there would have had to have been some compulsion on the part of Customs requiring plaintiff to have paid the moneys.” Carlingswitch, Inc. v. United States, 500 F. sup. 223, 227 (Ct. Int’l Trade 1980).In this case, Delverde voluntarily tendered the additional ADDs and CVDs to perfect its prior disclosure. The record does not manifest any