H337731

HQ H337731 December 18, 2024 OR:RR:CTF:EPDR H337731 ND Category: Entry Center Director Industrial and Manufacturing Materials Center of Excellence and Expertise Buffalo Field Office Buffalo, NY 14225 Attn: Tara Schwickrath, Import Specialist Re: Application for Further Review of Protest Number 4601-21-128657; Certain Hardwood Plywood Products from the People’s Republic of China; Antidumping Duties; A-570-051; Countervailing Duties; C-570-052; Extension of Liquidation; 19 U.S.C. § 1504(b); Deemed Liquidation; 19 U.S.C. § 1504(d) Dear Center Director, The purpose of this decision is to address the application for further review (“AFR”) of protest number 4601-21-128657, filed by Taraca Pacific, Inc. (“Taraca”) on July 12, 2021, regarding the assessment of antidumping duties (“ADD”) pursuant to case number A-570-051 and countervailing duties (“CVD”) pursuant to case number C-570-052. FACTS: Between March 8, 2019, and April 26, 2019, Taraca entered sixteen entries of hardwood plywood (“plywood”) from the People’s Republic of China (“China”). Plywood from China is subject to the ADD order in case number A-570-051 and the CVD order in case number C-570-052 (collectively “the Orders”). See Certain Hardwood Plywood Products From the People’s Republic of China: Amended Final Determination of Sales at Less Than Fair Value, and Antidumping Duty Order, 83 Fed. Reg. 504 (Jan. 4, 2018); Certain Hardwood Plywood Products From the People’s Republic of China: Countervailing Duty Order, 83 Fed. Reg. 513 (Jan. 4, 2018). According to the Automated Commercial Environment (“ACE”), Taraca entered the imported plywood as “type 01” consumption entries not subject to ADD or CVD. The commercial invoices, packing lists, and waybills accompanying the entry summaries identify Linyi Bangde International Trade Co., Ltd. (“Bangde”) as the exporter of the subject plywood, and Linyi Linhai Wood Co., Ltd. (“Linhai”) as the producer. On September 25, 2019, U.S. Customs and Border Protection (“CBP”) suspended liquidation of Taraca’s entries in accordance with the Orders. Id. On February 25, 2020, the Court of International Trade (“CIT”) issued a statutory injunction enjoining liquidation of certain entries of plywood from China imported by Taraca between September 18, 2020, and December 31, 2020, with respect to CVD case number C-570-052. See U.S. Department of Commerce (“Commerce”) Message No. 0059405 (Feb. 28, 2020). Among the entries subject to the injunction were entries of plywood from China exported and produced by Linhai. Id. However, entries of plywood imported by Taraca, exported by Bangde, and produced by Linhai were not covered by the injunction. Id. On March 10, 2020, Commerce published the Initiation of Administrative Reviews in the Federal Register. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 85 Fed. Reg. 13,860 (Mar. 10, 2020). On March 26, 2020, Commerce directed CBP to liquidate entries of plywood from China entered for consumption between January 1, 2019, and December 31, 2019, at the ADD cash deposit rate in effect on the date of entry. Message No. 0086408. Entries of plywood exported by Bangde and produced by Linhai were subject to the China-wide entity ADD cash deposit rate of 183.36%. See 83 Fed. Reg. 504 (Jan. 4, 2018). There is no dispute that these instructions are applicable to Taraca’s entries with respect to ADD case number A-570-051. On March 31, 2020, Commerce directed CBP to liquidate entries of plywood from China entered for consumption between January 1, 2019, and December 31, 2019, for certain entities at the CVD cash deposit rate in effect on the date of entry. Message No. 0091407. Commerce further directed CBP to continue suspending liquidation of entries “produced and/or exported” by certain entities, including Linhai. Id. Additionally, Message No. 0091407 identified the March 10, 2020, publication of the Initiation of Administrative Reviews as notice of the lifting of suspension of liquidation for the entries to be liquidated pursuant to these instructions. See also 85 Fed. Reg. 13,860 (Mar. 10, 2020). On May 19, 2020, CBP issued a Notice of Action (CBP Form 29) informing Taraca that its entries had been changed to “type 03” consumption entries subject to ADD and CVD per the Orders. CBP also demanded payment of cash deposits, as well as copies of non-reimbursement statements for each entry. On July 2, 2020, Commerce published the Notice of Recission of Administrative Review in the Federal Register. See Hardwood Plywood Products From the People’s Republic of China: Rescission of Countervailing Duty Administrative Review; 2019, 85 Fed. Reg. 39,883 (July 2, 2020). Commerce subsequently directed CBP to liquidate entries of plywood from China entered for consumption between January 1, 2019, and December 31, 2019, for certain entities, including Linhai, at the cash deposit rate required at the time of entry. Message No. 0199404 (July 17, 2020). Entries of plywood exported by Bangde and produced by Linhai were subject to the “all-others” CVD cash deposit rate of 22.98%. See 83 Fed. Reg. 513 (Jan. 4, 2018). On September 21, 2020, CBP extended liquidation of Taraca’s entries until March 8, 2021. According to CBP, it had yet to receive a response to its May 19, 2020, Notice of Action along with the requested statement of non-reimbursement required for each of Taraca’s sixteen entries. CBP liquidated Taraca’s entries on January 22, 2021, pursuant to the liquidation instructions in Messages 0086408 (Mar. 26, 2020), and 0199404 (July 17, 2020), assessing ADD at the 183.36% China-wide rate and CVD at the 22.98% “all others” rate in effect on the relevant dates of entry. Taraca filed protest number 4601-21-128657 on July 12, 2021, challenging the January 22, 2021, liquidation of its entries as untimely and improper. According to Taraca, the suspension of liquidation in place on its entries lifted on March 10, 2020, when Commerce published the Initiation of Administrative Reviews in the Federal Register, as referenced in Message No. 0091407, dated March 31, 2020. Taraca therefore believes that Message No. 0091407 contains the applicable liquidation instructions for its entries and that pursuant to 19 U.S.C. § 1504(d), its entries deemed liquidated on September 6, 2020, six months after the March 10, 2020, lifting of suspension of liquidation. Moreover, Taraca alleges that CBP erroneously extended liquidation of its entries on September 21, 2020, because its entries had already deemed liquidated, and CBP did not require any additional information to properly appraise or classify the imported merchandise nor did the importer request an extension. CBP believes that the operative notice of the lifting of suspension of liquidation applicable to Taraca’s entries occurred through publication of the Notice of Recission of Administrative Review in the Federal Register on July 2, 2020. Moreover, CBP states that the liquidation instructions in Message No. 0199404, dated July 17, 2020, directed CBP to liquidate Taraca’s entries, not the instructions in Message No. 0091407 as Taraca alleges. ISSUE: Whether Taraca’s entries deemed liquidated per 19 U.S.C. § 1504(d). LAW AND ANALYSIS: As an initial matter, we note that this protest meets the criteria for further review. Specifically, it raises questions of fact concerning Taraca’s entries that have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. See 19 C.F.R. § 174.24(b). Additionally, we note that protest number 4601-21-128657 was timely filed. Pursuant to 19 U.S.C. § 1514(c)(3)(A), a party must file a protest within 180 days after the date of liquidation. Taraca filed this protest on July 12, 2021, within 180 days of the January 22, 2021, liquidation date of its sixteen entries. It is well settled that “Customs merely follows Commerce’s instructions in assessing and collecting [ADD and CVD].” Mitsubishi Elecs. Am. Inc. v. United States, 44 F.3d 973, 977 

As an initial matter, we note that this protest meets the criteria for further review. Specifically, it raises questions of fact concerning Taraca’s entries that have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. See 19 C.F.R. § 174.24(b). Additionally, we note that protest number 4601-21-128657 was timely filed. Pursuant to 19 U.S.C. § 1514(c)(3)(A), a party must file a protest within 180 days after the date of liquidation. Taraca filed this protest on July 12, 2021, within 180 days of the January 22, 2021, liquidation date of its sixteen entries. It is well settled that “Customs merely follows Commerce’s instructions in assessing and collecting [ADD and CVD].” Mitsubishi Elecs. Am. Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). CBP cannot “modify Commerce’s determinations, their underlying facts, or their enforcement.” Id. (quoting Royal Bus. Machs. Inc. v. United States, 507 F. Supp. 1007, 1014 n.18 (Ct. Int’l Trade 1980)). CBP plays a “merely ministerial role in liquidating [ADD and CVD].” Id. at 977. “Customs should do no more than enact the intentions of Commerce.” See e.g., Shinyei Corp. of Am. v. United States, 2011 Ct. Int’l Trade LEXIS 65, *10 (June 15, 2011).Deemed liquidation for entries suspended subject to an ADD or CVD order is governed by 19 U.S.C. § 1504(d). Under 19 U.S.C. § 1504(d), once a suspension of liquidation required by statute or court order is removed, entries subject to the suspension of liquidation must be liquidated within six months after CBP receives notice of the lifting of suspension, unless such entries are properly extended. Notice of the removal of the suspension of liquidation must be unambiguous and public. See Cemex, S.A. v. United States, 384 F.3d 1314, 1321 (Fed. Cir 2004). Additionally, liquidation may be extended if:(1) the information needed for the proper appraisement . . . . of the imported . . . . merchandise . . . . or for ensuring compliance with applicable law,