In the importing community most everyone knows that failure to provide reimbursement certificate (stating that importer was not reimbursed) may double importer’s antidumping duties upon liquidation. This is the law, it is codified in 19 CFR 351.402. The same statute also provides for presumption of reimbursement, and thereby doubling of antidumping duties, if the certificate is not provided prior to liquidation. The statute states that Customs and Border Protection (CBP) may presume that reimbursement have occurred, however, some CBP officers at some ports interpret “may” as “must.” As a result, antidumping duties double, regardless of the fact that the importer was not reimbursed. Number of rulings and protests filed for further review published in CROSS indicates that a substantial number of importers got burned due to the lack of knowledge and/or control over the administrative process. CBP Headquarters further augmented the issue by publishing Guidance for Certificates of Reimbursement on November 18, 2005.
The best way to avoid doubling of antidumping duties is to play by the rules. File or instruct you broker to file the certificate with every entry packet. Make sure that the certificate is in acceptable format. File the blanket certificate with relevant CBP team at the port where you do the clearance as a back up. Unfortunately, no matter how well you established reimbursement filing procedures, it is prone to failure. The failure may have multiple causes. More often than not, it is a result of human error: new employee at the brokerage office, misplacement of the blanket certificate at a Customhouse, incorrect format to begin with, or simply someone just having a bad day.
What happens next?
If you a lucky, you may get a courtesy call from CBP Import Specialist or receive a form CBP28, request for information. You are less lucky if you receive form CBP 29, notice of action. Your luck have run out when you received courtesy notice of liquidations with duties liquidated at a higher amount, followed by the bill. In the former two cases, be quick to file the certificate. Follow up with the import specialist, make sure s/he received it and everything is in order. In case of form CBP 29 it is especially important to follow-up, because if your statement does not conform to standards or there is a mistake on it, CBP may wait for 20 days, then reject your argument (you are given 20 days) and proceed with liquidation right away. Form CBP 29 may also mislead some importers. The mere phrasing “rate advance…” “action has been taken…” may mislead the importer to the conclusion that this has happened as in the past tense. Do not be misguided! The language construction is awful and grammatically not correct, but this is bureaucracy. What form CBP 29 does, is actually notifies that the action is in process of being taken and that you have 20 days to affect this action.
If you missed the opportunity to file the certificate or reimbursement prior to liquidation, and your duties have doubled you still have the chance, but it is going to be tough! You will need to file a protest.
Protesting doubling of antidumping duties
The protest must be carefully written. Antidumping entries usually liquidate as a result of administrative reviews or the end of the court proceedings. Pursuant to 19 U.S.C. 1504 (d), Customs shall liquidate entries within 6 months following the suspension removed from Department of Commerce (DOC). It is rare, but worth checking, if CBP liquidated entry after 6 months following the suspension removal by DOC, than the entry should have liquidated by law in the amount deposited. If that is the case, include this in your argument. Keep in consideration the Guidance for Certificates of Reimbursement memorandum. Especially the following excerpt:
Protests involving Reimbursement Certificates
Any protest of an entry made on and after April 27, 1989, in which the protestant argues that a reimbursement certificate filed after the bulletin notice of liquidation was posted complies with the time period set in 19 CFR 351.402 should be denied. CBP’s position for entries made on and after April 27, 1989, is that, in order for a reimbursement certificate to be considered timely filed, it must be filed before liquidation of the entry, i.e., before the date that the bulletin notice of liquidation is posted in the Customhouse
In contrast, a protest in which the protestant disputes the assessment under 19 CFR 351.402, that does not involve the timeliness of filing the reimbursement certificate, should be sent to the Department of Commerce for review and recommendation as to the disposition. Ports should follow the current procedure for sending protests to the DOC (Protest / Petition Processing Handbook, January 2002)
In the protest narrative, under no circumstances protest the “timeliness.” Try to avoid that word altogether. Instead, concentrate on the fact that you were not reimbursed for the antidumping duties. Yes, CBP correctly followed the instructions, but your entry is a “false positive” and doubling of antidumping duties does not apply to you.
Clearly indicate that pursuant to memorandum you are requesting that CBP send your protest to the Department of Commerce. Use statements from previous rulings and court cases that would favorably affect the outcome of disposition. It is very important to explicitly make a connection between the statement in the ruling and your argument. If you are vague, CBP will not apply a particular statement but the ruling as a whole, rejecting your argument as inapplicable.
Below is the list of rulings, statutes, and vocabulary excerpts that will help you write a good argument. Make sure to explicitly state that it is that argument, not the ruling as a whole, that sets a precedent for your situation. If using such words as clerical error, mistake of fact, mistake of law, inadvertence, be sure to know exactly what they stand for.
Request for relief for failure to file reimbursement statement is denied because “…Customs should presume that reimbursement occurred.”
The mere assertion that ultimately a reimbursement certificate was completed is insufficient to defeat the presumption in the regulation.
Availl of Texas v. United States 70 F. 3rd 1248 (Fed. Cir. 1995)
Importer believed that a reimbursement certificate has been filed.
When double antidumping duties are accessed because no reimbursement certificate is timely filed the protestant has not established that the application of presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties were due to mistake of fact, clerical error, or inadvertence. Therefore, Customs was correct in deducting the amount of presumed reimbursement from the U.S. price, which resulted in a doubled antidumping duty.
…Protestant must present support for the position that the presumption should not be applied in this case…
…At no time prior to liquidation did the protestant believe there was filed or instruct another to file, a reimbursement certificate…
Finally, fill out the application for further review. By taking this step, you are having the protest reviewed higher up (usually assistant port director or a team leader / supervisor). If further review is not indicated, you may find yourself in the time entrapment. The CBP, by statute, has up to two years to review the protest and respond to the importer / filer (unless the situation deals with merchandise exclusion). Importer / filer has 180 after liquidation to file the protest (90 days if entry date is before February 28, 2004). If application for further review is not filled out, a CBP Import Specialist may hold on to the protest until 180 day period is expired and than mail out their disposition. As strange as it sounds, I have seen it happen.