LIQ-11; LIQ-4-01
RR:CR:DR 229134 IDL
Port Director of Customs
Director Trade Compliance
Diana Jackson
200 Granby St.
Suite 839
Norfolk, VA 23510
Re: Application for Further Review; Protest No. 1401-01-100026; 19 U.S.C. 1514; Antidumping Duties; 19 U.S.C. 1504(d)
Dear Ms. Jackson:
This is in response to your correspondence dated April 2, 2001, concerning Bayer Corporation, Protest No. 1401-01-100026.
FACTS:
Protestant, Bayer Corporation, Pittsburgh, PA (“Bayer”), imported industrial nitrocellulose from German producer, Wolff Walsrode AG (“WWAG”). Bayer protests against the liquidation of 23 entries made from August 2, 1996 through June 23, 1997. Bayer deposited 3.84% in antidumping duties, pursuant to the Department of Commerce’s (“Commerce”) Antidumping Duty Order of July 10, 1990 (Antidumping Duty Order; Industrial Nitrocellulose From the Federal Republic of Germany (“Order”)(55 FR 28271).
On April 9, 1998, Commerce published in the Federal Register (63 FR 17364), on Case A-428-803, Industrial Nitrocellulose from Germany; Preliminary Results of Antidumping Duty Administrative Review (“Preliminary Results”). The Preliminary Results covered imports of industrial cellulose from WWAG. Commerce preliminarily determined liability for antidumping duties at a margin of 6.58% for all entries occurring during the period of July 1, 1996 through June 30, 1997. All 23 entries were made during that period. On August 13, 1998, Commerce published in the Federal Register (63 FR 43372), on Case A-428-803, Industrial Nitrocellulose From Germany; Final Results of Antidumping Duty Administrative Review (“Final Results”). The Final Results covered imports of industrial nitrocellulose from one producer, WWAG. Final Results indicated a margin of antidumping duty liability equal to 7.18%.
On October 23, 2000, via email, Commerce issued to Customs liquidation instructions for Case A-428-803, Message No. 0297212, which covered exports of nitrocellulose from Germany, produced by WWAG, entered or withdrawn from warehouse for consumption during the period of July 1, 1996 through June 30, 1997. Those instructions contained the revised antidumping duty rate of 7.89%. The notice also lifted the suspension of liquidation for the merchandise and period listed above. The following month, on November 17, 2000, the port liquidated all 23 of the entries at the rate of 7.89%. On February 14, 2001, Bayer filed Protest No. 1401-01-100026.
According to counsel, Bayer properly deposited antidumping duties of 3.84%, pursuant to an Antidumping Duty Order (55 FR 28271), dated July 10, 1990; the subject entries were deemed liquidated by operation of law at the deposit rate of 3.84%, pursuant to the statute of limitations provisions of 19 U.S.C. 1504(d). The port contends that the assessment of dumping duties at the rate of 7.89% was completed timely, i.e. within 6 months of the date of issuance (October 23, 2000) of the liquidation instructions.
ISSUE:
Whether the liquidation by Customs of the subject entries on November 17, 2000 was barred by a prior liquidation by operation of law under 19 U.S.C. 1504(d)?
LAW AND ANALYSIS:
We note that the protest was timely filed under the statutory and regulatory provisions for protests (see 19 U.S.C. § 1514 and 19 CFR Part 174). Customs liquidated the entries on November 17, 2000, and the subject protest was filed on February 14, 2001.
Generally, antidumping duty instructions applied by Customs are not protestable. Fujitsu Ten Corp. v. United States, Ct. Int’l Trade, Slip Op. 97-11 (January 29, 1997). The role of Customs in the antidumping process is “simply to follow Commerce’s instructions in collecting deposits of estimated duties and in assessing antidumping duties…at the time of liquidation.” HQ 228611; HQ 225382; see also, Mitsubishi Electronics America, Inc. v. United States, 44 F. 3d 973 (Fed. Cir. 1994); Nichimen America, Inc. v. United States, 938 F. 2d 1286 (1991). However, an importer may protest the failure of Customs to follow a Commerce instruction under 19 U.S.C. 1514. American Hi-Fi International, Inc. v. United States, 19 C.I.T. 1340 (1995).
Headquarters has issued numerous administrative decisions proposing that suspension on liquidation of entries is removed on the date Customs receives liquidation instructions from Commerce, and that Customs must liquidate within 6 months of that date. However, interpreting 1504(d) in International Trading Co. v. United States, 110 F. Supp. 2d 977; Slip Op. 00-83 (July 14, 2000); Slip Op. 00-1577 (Fed. Cir.) March 1, 2002, aff’d, the CIT held that suspension on liquidation for the subject entries was removed following the publication of notice of final results in the Federal Register, and was sufficient notice under section 1504(d) (1993) for the 6-month liquidation period to run.
(d) Removal of suspension
…[W]hen a suspension required by statute or court order is removed, the Customs Service shall liquidate the entry…within 6 months after receiving notice of the removal from the Department of Commerce…. 19 U.S.C. 1504(d).
In this case, the subject entries were made from August 2, 1996 through June 23, 1997. Bayer deposited 3.84% antidumping duties pursuant to the Order in effect at the time of entry:
On or after the date of publication of this notice in the Federal Register, U.S. Customs officers must require, at the same time as importers would normally deposit estimated duties on this merchandise, a cash deposit equal to the estimated weighted-average antidumping duty margins as noted…. Antidumping Duty Order, 55 FR 28271 (July 10, 1990).
On August 13, 1998, Commerce published Final Results. Under the court’s interpretation of 19 U.S.C. 1504(d) in International Trading, the subject entries liquidated by operation of law on February 13, 1999 (i.e., 6 months after Commerce published Final Results).
Therefore, the liquidation by Customs of the subject entries on November 17, 2000 was barred by a prior liquidation by operation of law under 19 U.S.C. 1504(d).
HOLDING:
This protest should be GRANTED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
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