PRO-2-02; LIQ-4-01 229064 LLB
Category: Protests/Liquidation
Port Director of Customs
Attn: Cynthia Maltsberger
P.O. Box 055580
Portland, OR 97238
Re: Internal Advice; Protest No. 2904-00-100067; Jewel Import Division; 19 U.S.C. § 1514; HQ 225382 (July 3, 1995); Mitsubishi Electronic America Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994); ABC International Traders, Inc. v. United States, 19 CIT 787, 791 (1995); American Hi-Fi International, Inc. v. United States, 936 F. Supp. 1032, 1037(Ct. Int’l Trade 1996); HQ 226285 (October 10, 1997); HQ 227653 (October 31, 1997)
Dear Ms. Maltsberger:
The above-referenced protest has been forwarded to our office for further review. As explained below, because the requirements for further review have not been met, we are treating the application as a request for internal advice per 19 C.F.R. § 177.11. We have considered the points raised by the protestant, Jewel Import Division, and your office. Our decision follows.
FACTS
The subject protest covers an entry of 730 color television receivers made on March 8, 1984. According to the CF 28, the subject merchandise was manufactured in Korea by Gold Star, Inc. and the purchase invoice indicates that the seller was Emerson Radio, Hong Kong, Ltd. At the time of entry, manufacturers of color television receivers from Korea were subject to a preliminary determination of antidumping by the Department of Commerce (“Commerce”) and as such, importers of the subject merchandise were required to post a cash deposit or bond equal to the estimated dumping margin. 48 Fed. Reg. 48487 (October 19, 1983). Subsequently, Commerce issued CIE N-104-83 (December 15, 1983), instructing Customs to suspend liquidations and to require importers of the subject merchandise to post a cash deposit or a bond equal to the estimated dumping margin by the percentage listed therein. The margin for Goldstar was 3.87% and for all other manufacturers, sellers, and exporters, the margin was 3.20%.
On March 1, 1984, Commerce issued a Notice of Final Determination of Sales at Less than Fair Value in which it indicated the subject merchandise the weighted-average margin of the subject merchandise had a weighted-average margin of 14.77%. 49 Fed. Reg. 7620. According to the CF 7501, the estimated dumping margin was 3.20% of the entered value of the merchandise. The CF 7551 indicates that a bond in the amount of $3,700 was posted at entry.
On April 30, 1984, Commerce published an antidumping order in which it indicated that the subject merchandise had a weighted-average margin of 14.77%. 49 Fed. Reg. 18336. A review of the period October 19, 1983 through April 30, 1984, was initiated and the final results revealed that the subject merchandise to have a weighted-average margin of 7.47%. 49 Fed. Reg. 50240 (December 28, 1984). The manufacturer, Goldstar, Inc., appealed Commerce’s final determination, which the Court of International Trade, affirmed in part, and remanded in part. Daewoo Electronics Co., Ltd., v. United States, 712 F.Supp. 931 (Ct. Int’l Trade 1989). The Federal Circuit, affirmed-in-part, and reversed-in-part, the CIT’s decision, and remanded the case with instructions to the CIT to remand the case to Commerce for further proceedings. Daewoo Electronics Co, Ltd. et al. v. United States, 6 F.3d 1511 (Fed. Cir. 1993).
The following facts were asserted by the protestant. On July 8, 1996, the CIT issued an order remanding the case to Commerce for a final redetermination of, inter alia, the limitation of liability for anti-dumping duties assessed on the subject merchandise. The protestant has not provided this office with a copy of the remand order. The protestant has provided this office with the first four pages of a document labeled “Final Results of Redetermination Pursuant to Court Remand,” dated October 18, 1996. The document provides in part that “[i]n accordance with the remand order, we will instruct Customs to limit the liability for antidumping duties assessed on entries of merchandise from October 19, 1983 through April 25, 1984, by the amount of cash deposit or bond posted by the importer.” Whether this document was submitted to the CIT pursuant to the remand order is questionable because it does not have the court’s date stamp on it. Further, Commerce has confirmed with our office that the foregoing results were not published the Federal Register.
On September 17, 1999, Commerce sent an e-mail to Customs, which contained liquidation instructions for the subject merchandise entered between October 19, 1983 and April 30, 1984. Customs retransmitted those instructions as message number 9260116 to all the ports. The instructions provide, in pertinent part:
3. For all shipments of color television receivers (CTVS) from Korea produced by Gold Star Co., Ltd., and imported by all importers, and entered or withdrawn from warehouse for consumption during the period of 03/01/1984 through 04/24/1984, do not assess an antidumping liability more than 14.77 percent of the entered value.
6. The assessment of antidumping duties by the Customs Service on Entries of this merchandise is subject to the provisions of section 778 of the Tariff Act of 1930. Section 778 requires that Customs pay interest on overpayments or assess interest on underpayments of the required amounts deposited as estimated antidumping duties. The interest provisions are not applicable to cash or bonds posted as estimated antidumping duties before the date of publication of the antidumping duty order. Since the antidumping duty order in this case was published on 04/30/1984 (47 FR 18336), the interest provisions are not applicable for the entries covered by these instructions.
On March 17, 2000, Customs liquidated the 730 units in the subject entry at 21.98 per unit, which calculated to an antidumping duty rate of 14.0897%. Customs also assessed interest on the entry.
On June 13, 2000, the protestant filed its protest and application for further review arguing that pursuant to 19 U.S.C. § 1673f and the results of the final redetermination, supra, that its liability for antidumping duties is limited to the cash bond it posted in the amount of $3,700. Further, the protestant argues that pursuant to 19 U.S.C. § 1677g, it is not liable for interest because the subject merchandise was entered after the preliminary determination but before the issuance of the anti-dumping order.
ISSUE
Whether the issues presented are protestable
LAW and ANALYSIS
Initially, we note that the protestant’s June 13, 2000, protest, is timely inasmuch as it was filed within 90 days from the March 17, 2000, liquidation of the entry. 19 U.S.C. § 1514(c)(3).
We also note that the protestant’s application for further review (AFR) does not meet the requirements set forth in 19 C.F.R. § 174.24, which provides:
Further review of a protest which would otherwise by denied by the port director shall be accorded a party filing an application for further review which meets the requirements of § 174.25 when the decision against which the protest was filed:
(a) Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise;
(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;
(c) Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or
(d) is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to § 177.11(b)(5) of this chapter.
Therefore, further review will be accorded to the party filing an application for further review which meets the requirements of § 174.25 and at least one of the criterion in § 174.24. In the subject protest, the port approved the AFR notwithstanding the fact the protestant has not alleged any of the conditions required in § 174.24 of the decision protested. The protestant states as its justification for further review that “this protest concerns the assessment of antidumping duties in contravention of the antiduping [sic] duty law and the instructions of the Administering Authority.” The foregoing statement clearly is not a condition required in § 174.24. Consequently, the criteria for further review have not been met and therefore, we are treating protestant’s application as a request for internal advice.
* * *
First, the protestant argues that pursuant to 19 U.S.C. § 1673f and the results of the final redetermination, its liability for antidumping duties is limited to the cash bond it posted in the amount of $3,700. Second, the protestant argues that pursuant to 19 U.S.C. § 1677g, it is not liable for interest because the subject merchandise was entered after the preliminary determination but before the issuance of the anti-dumping order.
Generally, we have held that the role of Customs in the antidumping process is “[s]imply to follow Commerce’s instructions in collecting deposits of estimated duties and in assessing antidumping duties, together with interest, at the time of liquidation.” HQ 229413 (March 12, 2002); HQ 225382 (July 3, 1995); Mitsubishi Electronic America Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994). However, if Customs fails to follow the instructions of the Department of Commerce, that failure may be subject to protest under 19 U.S.C. §1514. See, e.g., ABC International Traders, Inc. v. United States, 19 CIT 787, 791 (1995)( “... [c]laims [that Customs erroneously liquidated certain entries and failed to follow Commerce’s liquidation instructions] may be brought before the court under 28 U.S.C. §1581(a)(1988), after denial of protests by Customs.”); see also, American Hi-Fi International, Inc. v. United States, 936 F. Supp. 1032, 1037 (Ct. Int’l Trade 1996)([j]urisdiction for actions challenging Customs’ failure to follow Commerce’s actual liquidation instructions ... is found under 28 U.S.C. §1581(a).”).
With regard to the first argument raised, there is no allegation that Customs failed to follow Commerce’s liquidation instructions as it relates to the rate at which the antidumping duties were assessed. Instead the protestant challenges the actual instructions insofar as they instruct Customs to liquidate the entries on a percentage basis rather than to limit the antidumping liability to the bond posted as established by the final results of the redetermination. Based on the foregoing precedent, this issue is not protestable under 19 U.S.C. §1514. See HQ 229413 (holding that where the liquidation instructions stated that antidumping duties should be assessed on a per unit basis, protestant’s argument that antidumping duties should have been assessed on a percentage basis pursuant to a decision by the Court of International Trade, challenged the actual liquidation instructions, rather than Customs failure to follow the liquidation instructions) HQ 226285 (October 10, 1997)(holding that protestant’s arguments addressing the assessment of double antidumping duties and penalties were not protestable inasmuch as they challenged the liquidation instructions, not Customs failure to follow the instructions); see also, HQ 227653 (October 31, 1997)(challenge to Commerce’s decision to suspend liquidation, not Customs’ failure to follow instructions). Therefore, the subject protest, with regard to the issue of the rate at which the merchandise should have been liquidated, should be denied.
With regard to the second issue raised, the protestant alleges that Customs failed to follow Commerce’s instructions regarding the assessment of interest. Our review of the liquidation instructions reveal that Customs did, in fact, fail to follow Commerce’s instructions. The instructions state:
6. The assessment of antidumping duties by the Customs Service on Entries of this merchandise is subject to the provisions of section 778 of the Tariff Act of 1930. Section 778 requires that Customs pay interest on overpayments or assess interest on underpayments of the required amounts deposited as estimated antidumping duties. The interest provisions are not applicable to cash or bonds posted as estimated antidumping duties before the date of publication of the antidumping duty order. Since the antidumping duty order in this case was published on 04/30/1984 (47 FR 18336), the interest provisions are not applicable for the entries covered by these instructions.
(emphasis added). Customs assessed interest contrary to these instructions, therefore, the subject protest, with regard the issue of Customs assessment of interest should be granted.
HOLDING
1. The protestant does not argue that Customs failed to follow the Department of Commerce’s liquidation instructions with regard to the rate at which antidumping duties were assessed. Rather, the protestant argues that antidumping duties should have been assessed consistent with, inter alia, the final results of the redetermination. Insofar as the protestant’s argument challenges the actual liquidation instruction, not Customs failure to follow the instruction, the protestant has not presented a protestable issue under 19 U.S.C. § 1514(a). The subject protest should be DENIED.
2. The Department of Commerce’s liquidation instructions directed Customs to liquidate the subject merchandise without interest. Insofar as Customs liquidated the entries with interest, contrary to these instructions, the protest, with regard to this issue, should be GRANTED.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division